Southern California Edison Company
$500,000,000 5.75 % First and Refunding Mortgage Bonds, Series 2008C, Due 2014
Underwriting Agreement
New York, New York
October 7, 2008
Banc of America Securities LLC
Citigroup Global Markets Inc.
Deutsche Bank Securities Inc.
X.X. Xxxxxx Securities Inc.
As Representatives of the several Underwriters
c/o
X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Southern California Edison Company, a corporation organized under the laws of
the State of California (the "Company"), proposes to sell to the several underwriters named
in Schedule I hereto (the "Underwriters"), for whom you (the "Representatives") are acting
as representatives, $500,000,000 principal amount of its 5.75% First and Refunding Mortgage
Bonds, Series 2008C, Due 2014 (the "Securities"), to be issued under the One Hundred
Seventeenth Supplemental Indenture (the "Supplemental Indenture") to be dated as of October
9, 2008, to a Trust Indenture dated as of October 1, 1923 (the "Trust Indenture" and, as
supplemented by the Supplemental Indenture, the "Indenture") between the Company and The
Bank of New York Mellon Trust Company, N.A., as successor to Xxxxxx Trust and Savings Bank,
and X.X. Xxxxxxx, as successor trustee to Pacific-Southwest Trust & Savings Bank, as
trustees (the "Trustees"). 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 Supplement or the Final Prospectus Supplement
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 Supplement or the Final Prospectus Supplement, 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 Supplement or
the Final Prospectus Supplement 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 Supplement or the Final
Prospectus Supplement, as the case may be, deemed to be incorporated therein by reference.
Certain terms used herein are defined in Section 19 hereof.
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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 meets the requirements for use of Form S-3 under the Act and has prepared
and filed with the Commission an automatic shelf registration statement, as defined
in Rule 405 (file number 333-136394) on Form S-3, including a related Base
Prospectus, for registration under the Act of the offering and sale of the
Securities. The Company may have filed one or more amendments thereto, including a
Preliminary Prospectus Supplement, each of which has previously been furnished to you
and has become effective upon filing. The Company will next file with the Commission
a Final Prospectus Supplement relating to the Securities in accordance with Rule
424(b). The Registration Statement, at the Execution Time, is effective and 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
Supplement is first filed in accordance with Rule 424(b) and on the Closing Date (as
defined herein), the Final Prospectus Supplement (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 each 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 Supplement (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
Trustees or (ii) the information contained in or omitted from the Registration
Statement or the Final Prospectus Supplement (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 Supplement (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 Initial Sale Time, the Disclosure Package when taken together as a whole,
do 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 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
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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 filing the Registration Statement, (ii) at the time of the most
recent amendment thereto 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),
(iii) 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 (iv) 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). The Company agrees to pay the fees required by the Commission relating to the
Securities within the time required by Rule 456(b)(1) without regard to the proviso
therein and otherwise in accordance with Rules 456(b) and 457(r).
(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) Neither any Issuer Free Writing Prospectus nor the Final Term Sheet includes any
information that conflicts with the information contained in the Registration
Statement, including any document incorporated by reference therein 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
the Disclosure 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.
(g) 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
Preliminary Prospectus Supplement and the Final Prospectus Supplement, will not be an
"investment company" as defined in the Investment Company Act of 1940, as amended.
(h) 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 Registration Statement, Preliminary
Prospectus Supplement and the Final Prospectus Supplement, and is duly qualified to
do business as a foreign corporation and is in good standing under the laws of each
jurisdiction that requires such qualification.
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(i) There is no franchise, contract or other document of a character required to be
described in the Registration Statement, the Preliminary Prospectus Supplement or the
Final Prospectus Supplement, or to be filed as an exhibit thereto, which is not
described or filed as required; and the statements in the Preliminary Prospectus
Supplement and the Final Prospectus Supplement under the heading "Summary-- Southern
California Edison Company" and the statements incorporated into the Preliminary
Prospectus Supplement and the Final Prospectus Supplement from the sections entitled
"Business--Regulation" and "--Environmental Matters" in the Company's Annual Report on
Form 10-K for the fiscal year ended December 31, 2007 (the "Form 10-K"), as
supplemented by information contained in the Company's subsequent Quarterly Reports
on Form 10-Q and Current Reports on Form 8-K, which are incorporated into the
Preliminary Prospectus Supplement and the Final Prospectus Supplement, fairly
summarize the matters therein described in all material respects.
(j) This Agreement has been duly authorized, executed and delivered by the Company.
(k) The Securities and the Indenture conform in all material respects to the description
thereof contained in the Registration Statement, Preliminary Prospectus Supplement
and the Final Prospectus Supplement; each of the Trust Indenture and the Supplemental
Indenture has been duly authorized by the Company and, assuming due authorization,
execution and delivery thereof by the Trustees, the Trust Indenture constitutes and,
as supplemented by the Supplemental Indenture when executed and delivered by the
Company, will constitute a legal, valid, and binding instrument enforceable against
the Company in accordance with its terms (subject, as to enforcement of remedies, to
(A) applicable bankruptcy, fraudulent conveyance, fraudulent transfer,
reorganization, insolvency, moratorium, equitable subordination or other laws
affecting creditors' rights generally from time to time in effect and to general
principles of equity, (B) the terms of the franchises, licenses, easements, leases,
permits, contracts and other instruments under which the mortgaged property is held
or operated, (C) as to its enforceability in respect of the Company's interest in
nuclear energy facilities, the provisions of the Atomic Energy Act of 1954 and
regulations thereunder, (D) as to its enforceability in respect of the interest of
the Company in the Four Corners Generating Station and the easement and lease
therefor, to possible defects in title, including possible conflicting grants or
encumbrances not ascertainable because of the absence of or inadequacies in the
applicable recording law and the record system of the Bureau of Indian Affairs and
the Navajo Nation, to the possible inability of the Company to resort to legal
process to enforce its rights against the Navajo Nation without Congressional consent
and, in the case of the Company's lease, to possible impairment or termination under
certain circumstances by Congress or the Secretary of the Interior and (E) such other
liens, prior rights and encumbrances none of which (with the possible exception of
the matter referred to in clause (D) above), with immaterial exceptions, affects from
a legal standpoint the security for the Securities, the ability of the Trustees to
foreclose on the property subject to the liens created by the Indenture or the
Company's right to use such properties in its business); the Securities have been
duly and validly authorized, and, when issued and
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delivered to and paid for by the
Underwriters pursuant to this Agreement, will be fully paid and nonassessable.
(l) 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 (i) under the Act, (ii) from
the California Public Utilities Commission and (iii) 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 Registration Statement, Preliminary Prospectus Supplement and the Final
Prospectus Supplement.
(m) All such filings, recordings, indexings and postings to geographical indexes have
been made in (x) county real estate records or offices of county recorders, (y)
Federal and State offices, bureaus and agencies and (z) offices of the Navajo Nation
as are necessary under applicable law to perfect, preserve and protect the lien
created by the Indenture or ensure that such filings, recordations, postings and
indexings are fully effective to give constructive notice, constructive knowledge or
implied notice, as applicable, of such lien and the property subject thereto to all
purchasers, mortgagees and encumbrancers of such property (other than after-acquired
property) who become such subsequent to the date of such recording, filing, posting
or indexing.
(n) The Indenture will constitute a legally valid first lien or charge, to the extent
that it purports to be such, on substantially all of the property now owned by the
Company to the extent and subject to the exceptions, defects, qualifications and
other matters set forth or referred to in the Registration Statement, Preliminary
Prospectus Supplement and the Final Prospectus Supplement or in Section 1(k) of this
Agreement, and to such other matters that do not materially affect the security for
the Securities.
(o) Neither the issue and sale of the Securities nor the consummation of any other of the
transactions herein contemplated nor the fulfillment of the terms hereof will
conflict with, result in a breach or violation of, or imposition of any lien, charge
or encumbrance upon any property or assets of the Company pursuant to, (i) the
articles of incorporation, by-laws or other organizational documents of the Company,
(ii) the terms of any indenture (other than, solely with respect to the imposition of
liens, charges and encumbrances upon property or assets of the Company, the lien
created by the Indenture in favor of the Securities), contract, lease, mortgage, deed
of trust, note agreement, loan agreement or other agreement, obligation, condition,
covenant or instrument to which the Company 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 of any court, regulatory body,
administrative agency, governmental body, arbitrator or other authority having
jurisdiction over the Company or any of its or their properties.
(p) The consolidated historical financial statements and schedules of the Company and its
consolidated subsidiaries incorporated by reference in the Preliminary Prospectus
Supplement, the Final Prospectus Supplement and the Registration Statement (the
"Financial Statements") present fairly in all material respects the financial
condition, results of operations and cash flows of the Company as of the dates and
for the periods
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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 Company's Form 10-K, incorporated by
reference in the Preliminary Prospectus Supplement, the Final Prospectus Supplement
and Registration Statement fairly present, on the basis stated in the Form 10-K, the
information included therein. The financial information included or incorporated in
the Preliminary Prospectus Supplement and the Final Prospectus Supplement complies
with the requirements of Regulation G and Item 10(e) of Regulation S-K under the Act.
(q) PricewaterhouseCoopers 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 for the year ended
December 31, 2007 incorporated by reference in the Registration Statement,
Preliminary Prospectus Supplement and the Final Prospectus Supplement, are 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.
(r) 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, except as set forth in or contemplated in the Registration Statement,
Preliminary Prospectus Supplement and the Final Prospectus Supplement (exclusive of
any supplement thereto).
(s) The Company and its subsidiaries maintain a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are executed in
accordance with management's 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 management's 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.
(t) The Company is not in violation or default of (i) any provision of its articles of
incorporation, bylaws or other organizational 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 it
or any of its properties, as applicable (except,
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in the case of clauses (ii) and
(iii), for such violations or defaults as would not, in the aggregate, have a
Material Adverse Effect).
(u) The Company possesses all licenses, certificates, permits and other authorizations
issued by the appropriate national and local U.S. federal and state regulatory
authorities necessary to conduct their respective businesses, and the Company has not
received any notice of proceedings relating to the revocation or modification of any
such certificate, authorization or permit which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would have a Material Adverse
Effect, except as set forth in or contemplated in the Registration Statement, the
Preliminary Prospectus Supplement and the Final Prospectus Supplement (exclusive of
any supplement thereto).
(v) The Company is (i) in compliance with any and all applicable national and local U.S.
federal and state laws and regulations relating to the protection of human health and
safety, the environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), (ii) has received and are in compliance with all
permits, licenses or other approvals required of them under applicable Environmental
Laws to conduct their respective businesses and (iii) has not received notice of any
actual or potential liability for the investigation or remediation of any disposal or
release of hazardous or toxic substances or wastes, pollutants or contaminants,
except where such non-compliance with Environmental Laws, failure to receive required
permits, licenses or other approvals, or liability would not have a Material Adverse
Effect, except as set forth in or contemplated in the Registration Statement, the
Preliminary Prospectus Supplement and the Final Prospectus Supplement (exclusive of
any supplement thereto). Except as set forth in or contemplated in the Registration
Statement, the Preliminary Prospectus Supplement and the Final Prospectus Supplement
(exclusive of any supplement thereto), the Company has not been named as a
"potentially responsible party" under the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended.
(w) In the ordinary course of its business, the Company periodically reviews the effect
of Environmental Laws on the business, operations and properties of the Company, in
the course of which it identifies and evaluates associated costs and liabilities
(including, without limitation, any capital or operating expenditures required for
clean-up, closure of properties or compliance with Environmental Laws, or any permit,
license or approval, any related constraints on operating activities and any
potential liabilities to third parties). On the basis of such review, the Company
has reasonably concluded that such associated costs and liabilities would not, singly
or in the aggregate, have a Material Adverse Effect, except as set forth in or
contemplated in the Registration Statement, the Preliminary Prospectus Supplement and
the Final Prospectus Supplement (exclusive of any supplement thereto).
(x) No holders of securities of the Company have rights to the registration of such
securities under the Registration Statement.
(y) The Company owns or leases all such properties as are necessary to the conduct of its
operations as presently conducted.
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(z) 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.
(aa) Except as set forth in or contemplated in the Registration Statement, the Preliminary
Prospectus Supplement and the Final Prospectus Supplement (exclusive of any
supplement thereto), the minimum funding standard under Section 302 of the Employee
Retirement Income Security Act of 1974, as amended, and the regulations and published
interpretations thereunder ("ERISA"), has been satisfied by each "pension plan" (as
defined in Section 3(2) of ERISA) which has been established or maintained by the
Company and/or one or more of its subsidiaries, except where the failure to satisfy
such standard would not have a Material Adverse Effect; each pension plan established
or maintained by the Company and/or one or more of its subsidiaries, and the trust
forming part of each such plan, has been determined by the Internal Revenue Service
to be designed in accordance with Section 401 of the Code, and each such pension plan
has subsequently been amended, and the Company believes that each such pension plan,
as amended, is designed in compliance with Section 401 of the Code; each of the
Company and its subsidiaries has fulfilled its obligations, if any, under Section 515
of ERISA; each pension plan and welfare plan established or maintained by the Company
and/or one or more of its subsidiaries is in compliance in all material respects with
the currently applicable provisions of ERISA, except in such cases where
noncompliance would not have a Material Adverse Effect; and neither the Company nor
any of its subsidiaries has incurred or could reasonably be expected to incur any
withdrawal liability under Section 4201 of ERISA, any liability under Section 4062,
4063, or 4064 of ERISA, or any other liability under Title IV of ERISA.
(bb) Except as set forth in or contemplated in the Registration Statement, the Preliminary
Prospectus Supplement and the Final Prospectus Supplement (exclusive of any
supplement thereto), the Company (i) does not have any material lending or other
relationship with any bank or lending affiliate of the Underwriters and (ii) does not
intend to use any of the proceeds from the sale of the Securities hereunder to repay
any outstanding debt owed to any affiliate of the Underwriters other than commercial
paper.
(cc) There is and has been no failure on the part of the Company and any of the Company's
directors or officers, in their capacities as such, to comply with Section 401 of the
Sarbanes Oxley Act of 2002 and the rules and regulations promulgated in connection
therewith (the "Sarbanes Oxley Act") related to loans.
Any certificate signed by any officer of the Company and delivered to the
Representatives or counsel for the Underwriters in connection with the offering of the
Securities 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
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Company, at a purchase price of 99.492% of the principal amount thereof, the principal
amount of the Securities set forth opposite such Underwriter's name in Schedule I hereto.
3. Delivery and Payment. Delivery of and payment for the Securities shall be made at
10:00 AM, New York City time, on October 15, 2008 or at such time on such later date not
more than five Business Days after the foregoing date as the Representatives shall
designate, which date and time may be postponed by agreement between the Representatives
and the Company or as provided in Section 9 hereof (such date and time of delivery and
payment for the Securities being herein called the "Closing Date"). Delivery of the
Securities shall be made to the Representatives for the respective accounts of the several
Underwriters against payment 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 Registration Statement,
Disclosure Package and the Final Prospectus Supplement.
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 Supplement or any Preliminary Prospectus Supplement) 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. Subject to the foregoing sentence, the Company will cause the
Final Prospectus Supplement, 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 (1) when the Final Prospectus
Supplement, and any supplement thereto, shall have been filed (if required) with the
Commission pursuant to Rule 424(b), (2) when, prior to termination of the offering of
the Securities, any amendment to the Registration Statement shall have been filed or
become effective, (3) of any request by the Commission or its staff for any amendment
of the Registration Statement, or for any supplement to the Final Prospectus
Supplement or for any additional information, (4) of the issuance by the Commission
of any stop order suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (5) 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 best
efforts to prevent the issuance of any such stop order or the suspension of any such
qualification and, if issued, to obtain as soon as possible the withdrawal of such
stop order, 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.
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(b) The Company will prepare a final term sheet, substantially in the form of Schedule II
hereto (the "Final Term Sheet"), and will file the Final Term Sheet pursuant to Rule
433(d) within the time required by such Rule.
(c) If there occurs an event or development as a result of which the Disclosure Package
would include an untrue statement of a material fact or would omit to state a
material fact necessary in order to make the statements therein, in the light of the
circumstances then prevailing, not misleading, the Company will notify promptly the
Representatives so that any use of the Disclosure Package may cease until it is
amended or supplemented.
(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 Supplement 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 not misleading,
or if it shall be necessary to amend the Registration Statement, file a new
registration statement or supplement the Final Prospectus Supplement 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 Supplement, the Company
promptly will (1) notify the Representatives of such event; (2) 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; (3) 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 Supplement; and (4) supply any amended or supplemented Final Prospectus
Supplement 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) Upon request, 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 Supplement, 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.
(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, will
maintain such qualifications in effect so long as required for the distribution
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of the Securities and will pay any fee of the Financial Industry Regulatory Authority,
Inc., in connection with its review of the offering; 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) (i) The Company agrees that, unless it has obtained or obtains, as the case may be,
the prior written consent of the Representatives, and (ii) each Underwriter,
severally and not jointly, agrees with the Company that, unless it has obtained or
obtains, 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; provided
that the prior written consent of the parties hereto shall be deemed to have been
given in respect of the Free Writing Prospectuses, if any, included in Schedule III
hereto. 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.
(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 for a period commencing on the date hereof and ending on
the Closing Date.
(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.
6. Conditions to the Obligations of the Underwriters. The obligations of the
Underwriters to purchase the Securities, as described in Section 2 hereof, 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
page 11
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 Supplement, and any supplement thereto, have been filed in the
manner and within the time period required by Rule 424(b); the Final Term Sheet 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 shall have been issued and no proceedings
for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxxx X. Xxxxxxx, Vice President,
Associate General Counsel, Chief Governance Officer and Corporate Secretary of the
Company, to have furnished to the Representatives her opinion, dated the Closing Date
and addressed to the Representatives, to the effect that:
(i) The Company is a corporation duly incorporated, validly existing and in good standing
under the laws of the State of California;
(ii) The Company has the corporate power and authority to own and operate its property, to
lease the property it operates as lessee and to conduct the business in which
it is currently engaged, as described in the Registration Statement,
Preliminary Prospectus Supplement and the Final Prospectus Supplement;
(iii) The Company has all requisite corporate power and authority, has taken all requisite
corporate action, and has received and is in compliance with all governmental,
judicial and other authorizations, approvals and orders necessary to enter into
and perform the Underwriting Agreement and the Supplemental Indenture and to
offer, issue, sell and deliver the Securities;
(iv) the Trust Indenture has been duly authorized, executed and delivered by the Company
and is a legal, valid, and binding instrument enforceable against the Company
in accordance with its terms;
(v) the Supplemental Indenture has been duly authorized, executed and delivered by the
Company and is a legal, valid, and binding instrument enforceable against the
Company in accordance with its terms;
(vi) the Securities have been duly authorized by the Company and, when executed and
authenticated in accordance with the provisions of the Indenture and delivered
to and paid for by the Underwriters pursuant to this Agreement, will constitute
legal, valid, and binding obligations of the Company entitled to the benefits
of the Trust Indenture, as supplemented by the Supplemental Indenture;
(vii) the Trust Indenture, as supplemented by the Supplemental Indenture, creates a legally
valid first lien, to the extent that it purports to be such,
Page 12
on the properties
and assets of the Company subject thereto, securing, among other things, the
Securities, subject to the exceptions, defects, qualifications and other
matters set forth or referred to in the Registration Statement, Preliminary
Prospectus Supplement and the Final Prospectus Supplement and other matters
that do not, in the opinion of such counsel, materially affect the security for
the Securities;
(viii) 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 which is not adequately disclosed in the Registration
Statement, Preliminary Prospectus Supplement and Final Prospectus Supplement,
except in each case for such proceedings that, if the subject of an unfavorable
decision, ruling or finding, would not singly or in the aggregate, be
reasonably likely to result in a material adverse change in the condition
(financial or otherwise), prospects, earnings, business, properties or results
of operations of the Company, and there is no franchise, contract or other
document of a character required to be described in the Registration Statement,
the Preliminary Prospectus Supplement and the Final Prospectus Supplement, or
to be filed as an exhibit thereto, which is not described or filed as required;
and the statements included or incorporated by reference in the Preliminary
Prospectus Supplement and the Final Prospectus Supplement under the headings
"Legal Matters" and "Summary -- Southern California Edison Company" or
incorporated by reference into the Preliminary Prospectus Supplement and the
Final Prospectus Supplement from the sections entitled "Business-- Regulation"
and "-- Environmental Matters" in the Company's Annual Report on Form 10-K for
the fiscal year ended December 31, 2007, as supplemented by information
contained in the Company's subsequent Quarterly Reports on Form 10-Q and
Current Reports on Form 8-K, which are incorporated by reference in the
Preliminary Prospectus Supplement and the Final Prospectus Supplement, fairly
summarize the matters therein described in all material respects; and the
statements set forth in the Preliminary Prospectus Supplement and the Final
Prospectus Supplement under the heading "Certain Terms of the Bonds" and in the
Base Prospectus under the heading "Description of the First Mortgage Bonds,"
insofar as those statements purport to summarize certain provisions of the
Trust Indenture, the Supplemental Indenture and the Securities, are accurate
summaries in all material respects;
(ix) the Registration Statement has become effective under the Act; any required filing of
the Preliminary Prospectus Supplement and the Final Prospectus Supplement, and
any supplements thereto, pursuant to Rule 424(b) has been made in the manner
and within the time period required by Rule 424(b); to the knowledge of such
counsel, no stop order suspending the effectiveness of the Registration
Statement has been issued, no proceedings for that purpose have been instituted
or threatened and the Registration Statement and the Final Prospectus
Supplement (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
Page 13
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;
(x) this Agreement has been duly authorized, executed and delivered by the Company;
(xi) 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
Preliminary Prospectus Supplement and the Final Prospectus Supplement, will not
be an "investment company" as defined in the Investment Company Act of 1940, as
amended;
(xii) 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 (i) under the Act, (ii)
from the California Public Utilities Commission and (iii) such as may be
required under the blue sky laws of any jurisdiction in connection with the
purchase and distribution of the Securities by the Underwriters in the manner
contemplated in this Agreement and in the Registration Statement, Preliminary
Prospectus Supplement and the Final Prospectus Supplement and such other
approvals (specified in such opinion) as have been obtained;
(xiii) neither the execution and delivery of the Indenture, the issue and sale of the
Securities, nor the consummation of any other of the transactions herein
contemplated nor the fulfillment of the terms hereof will conflict with, result
in a breach or violation of, or imposition of any lien, charge or encumbrance
upon any property or assets of the Company pursuant to, (i) the articles of
incorporation or by-laws of the Company, (ii) the terms of any indenture (other
than, solely with respect to the disposition of liens, charges and encumbrances
upon property or assets of the Company, the lien created by the Indenture in
favor of the Securities), contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement, obligation, condition, covenant
or instrument to which the Company 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 of any court, regulatory body,
administrative agency, governmental body, arbitrator or other authority having
jurisdiction over the Company or any of its properties; and
(xiv) no holders of securities of the Company have rights to the registration of such
securities under the Registration Statement.
Such opinion will also include language to the effect that such counsel has no reason
to believe that, as of the Initial Sale Time, the documents included in the
Disclosure Package and the Final Term Sheet contained any untrue statement of a
material fact or omitted to state any material fact necessary in order to make the
statements therein, in the light of circumstances under which they were made, not
misleading.
Page 14
Such opinion will also include language to the effect that counsel has no reason to
believe that on the Effective Date the Registration Statement contained any untrue
statement of a material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not misleading or that the
Final Prospectus Supplement as of its date and on the Closing Date included or
includes any untrue statement of a material fact or omitted or omits to state any
material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
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 or the
Federal laws of the United States, to the extent she deems proper and specified in
such opinion, upon the opinion of other counsel of good standing whom she believes to
be reliable and who are satisfactory to counsel for the Underwriters and (B) as to
matters of fact, to the extent she deems proper, on certificates of responsible
officers of the Company and public officials. Such counsel may render such opinion
subject to such exceptions and qualifications as are reasonable or customary under
the circumstances and acceptable to counsel for the Underwriters. References to the
Final Prospectus Supplement in this paragraph (b) shall also include any supplements
thereto at the Closing Date.
(c) The Representatives shall have received from Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP,
counsel for the Underwriters, such opinion or opinions, dated the Closing Date and
addressed to the Representatives 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 Senior Vice President, Chief Financial Officer of the Company, dated
the Closing Date, to the effect that he has carefully examined the Registration
Statement, the Disclosure Package and the Final Prospectus Supplement, any
supplements or amendments thereto 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 has been
issued and no proceedings for that purpose have been instituted or, to the
Company's knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by
reference in the Preliminary Prospectus Supplement and the Final Prospectus
Supplement (exclusive of any supplement thereto), there has been no material
adverse effect on the condition (financial or otherwise), prospects, 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,
Page 15
except as set forth in or contemplated in the Registration Statement,
Preliminary Prospectus Supplement and the Final Prospectus Supplement
(exclusive of any supplement thereto).
(e) The Company shall have requested and caused PricewaterhouseCoopers LLP to have
furnished to the Representatives, at the Execution Time and at the Closing Date,
letters, 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 registered public accounting firm with respect to the Company within the
meaning of the Act and the applicable rules and regulations thereunder adopted by the
Commission and the Public Company Accounting Oversight Board (United States) and that
they have performed a review of the unaudited interim financial information of the
Company for the three-month and six-month periods ended June 30, 2008, and as at June
30, 2008, in accordance with Statement on Auditing Standards No. 100, stating in
effect that:
(i) in their opinion the audited consolidated financial statements and financial
statement schedules of the Company audited by them and included or incorporated
by reference in the Registration Statement, the Preliminary Prospectus
Supplement (in the case of the letter delivered at the Execution Time) and the
Final Prospectus Supplement (in the case of the letter delivered at the Closing
Date) and reported on by them comply as to form in all material respects with
the applicable accounting requirements of the Act and the Exchange Act and the
related rules and regulations adopted by the Commission;
(ii) on the basis of a reading of the latest unaudited financial statements made available
by the Company and its subsidiaries; their limited review, in accordance with
standards established under Statement on Auditing Standards No. 100, of the
unaudited interim financial information for the three-month and six-month
periods ended June 30, 2008, and as at June 30, 2008, incorporated by reference
in the Registration Statement, the Preliminary Prospectus Supplement (in the
case of the letter delivered at the Execution Time) and the Final Prospectus
Supplement (in the case of the letter delivered at the Closing Date); carrying
out certain specified procedures (but not an examination in accordance with
generally accepted auditing standards) which would not necessarily reveal
matters of significance with respect to the comments set forth in such letter;
a reading of the minutes of the meetings of the stockholders, directors and the
executive, finance, compensation and audit committees of the Company, 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, 2007, nothing came to their
attention which caused them to believe that:
(1) any unaudited financial statements included or incorporated by reference in the
Registration Statement, the Preliminary Prospectus Supplement (in the
case of the letter delivered at the Execution Time) and the Final
Prospectus Supplement (in the case of the letter delivered at the
Page 16
Closing
Date) do not comply as to form in all material respects with applicable
accounting requirements of the Act and with the related rules and
regulations adopted by the Commission with respect to financial
statements included or incorporated by reference in Quarterly Reports on
Form 10-Q under the Exchange Act; and said unaudited financial statements
are not in conformity with generally accepted accounting principles
applied on a basis substantially consistent with that of the audited
financial statements included or incorporated by reference in the
Registration Statement, the Preliminary Prospectus Supplement (in the
case of the letter delivered at the Execution Time) and the Final
Prospectus Supplement (in the case of the letter delivered at the Closing
Date); or
(2) with respect to the period subsequent to June 30, 2008, there were, at a specified
date not more than five days prior to the date of the letter, any
increases in the long-term debt of the Company and its subsidiaries or
any changes in the common stock of the Company as compared with the
amounts shown on the June 30, 2008, balance sheet included or
incorporated by reference in the Registration Statement, the Preliminary
Prospectus Supplement (in the case of the letter delivered at the
Execution Time) and the Final Prospectus Supplement (in the case of the
letter delivered at the Closing Date), or decrease in the consolidated
net income available for common stock of the Company for the two-months
period ended August 31, 2008 as compared with the corresponding period in
2007, 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
(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 Supplement (in the case of the letter delivered at the Execution
Time) and the Final Prospectus Supplement (in the case of the letter delivered
at the Closing Date) and in Exhibit 12 to the Registration Statement, including
the information set forth under the caption "Selected Financial Information"
incorporated by reference in the Preliminary Prospectus Supplement (in the case
of the letter delivered at the Execution Time) and the Final Prospectus
Supplement (in the case of the letter delivered at the Closing Date), the
information included or incorporated by reference in Items 1, 2, 6, 7 and 11 of
the Company's Annual Report on Form 10-K, incorporated by reference in the
Registration Statement, the Preliminary Prospectus Supplement (in the case of
the letter delivered at the Execution Time) and the Final Prospectus Supplement
(in the case of the letter delivered at the Closing Date), and the information
included in the "Management's Discussion and Analysis of Financial Condition
and Results of Operations" included or incorporated by
Page 17
reference in the
Company's Quarterly Reports on Form 10-Q, incorporated by reference in the
Registration Statement, the Preliminary Prospectus Supplement (in the case of
the letter delivered at the Execution Time) and the Final Prospectus Supplement
(in the case of the letter delivered at the Closing Date), agrees with the
accounting records of the Company and its subsidiaries, excluding any questions
of legal interpretation.
References to the 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), the
Preliminary Prospectus Supplement and the Final Prospectus Supplement (exclusive of
any supplement thereto), there shall not have been (i) any 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 Registration Statement, the Preliminary Prospectus Supplement and
the Final Prospectus Supplement (exclusive of any supplement thereto) the effect of
which, in any case referred to in clause (i) or (ii) above, is, in the sole 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
Preliminary Prospectus Supplement and the Final Prospectus Supplement (exclusive of
any supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been any decrease in the
rating of any of the Company's 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 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 Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, counsel for the Underwriters, at Xxx
Xxxxxxx Xxxxx, Xxx Xxxx, XX, on the Closing Date.
Page 18
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
11 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 X.X. Xxxxxx Securities Inc. on demand for all out-of-pocket expenses (including
reasonable fees and disbursements of counsel) that shall have been incurred by them in
connection with the proposed purchase and sale of the Securities.
8. Indemnification and Contribution. (a) The Company agrees to indemnify and hold
harmless each Underwriter, the directors, officers, employees and agents of each
Underwriter and each person who controls any Underwriter within the meaning of either the
Act or the Exchange Act against any and all losses, claims, damages or liabilities, joint
or several, to which they or any of them may become subject under the Act, the Exchange Act
or other Federal or state statutory law or regulation, at common law or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof) arise out
of, or are based upon any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement for the registration of the Securities as
originally filed or in any amendment thereof, or in any Preliminary Prospectus Supplement,
the Final Prospectus Supplement, any Issuer Free Writing Prospectus or the information
contained in the Final Term Sheet, 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.
(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 in the last
paragraph of the cover page of the Final Prospectus Supplement regarding delivery of the
Securities and, under the heading of the Final Prospectus Supplement labeled
"Underwriting," (i) the list of Underwriters and their respective participation in the sale
of the Securities, (ii) the sentences related to concessions and reallowances and (iii) the
paragraph related to stabilization, syndicate covering transactions and penalty bids in
Page 19
the Final Prospectus Supplement constitute the only information furnished in writing by or on
behalf of the several Underwriters by the Representatives for inclusion in the Final
Prospectus Supplement.
(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 party's choice
at the indemnifying party's expense to represent the indemnified party in any action for
which indemnification is sought (in which case the indemnifying party shall not thereafter
be responsible for the fees and expenses of any separate counsel retained by the
indemnified party or parties except as set forth below); provided, however, that such
counsel shall be satisfactory to the indemnified party. Notwithstanding the indemnifying
party's election to appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel (including local
counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict of interest,
(ii) the actual or potential defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party shall have
reasonably concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to the
indemnifying party, (iii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within a
reasonable time after notice of the institution of such action or (iv) the indemnifying
party shall authorize the indemnified party to employ separate counsel at the expense of
the indemnifying party. An indemnifying party will not, without the prior written consent
of the indemnified parties, settle or compromise or consent to the entry of any judgment
with respect to any pending or threatened claim, action, suit or proceeding in respect of
which indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action) unless such
settlement, compromise or consent includes an unconditional release of each indemnified
party from all liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b) of this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party for any reason, the
Company and the Underwriters severally agree to contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably incurred in
connection with investigating or defending same) (collectively "Losses") to which the
Company and one or more of the Underwriters may be subject in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one hand and by
the Underwriters on the other from the offering of the Securities; provided, however, that
in no case shall any Underwriter (except as may be provided in any agreement among
underwriters relating to the offering of the Securities) be
Page 20
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 Supplement. Relative fault shall be determined by reference
to, among other things, whether any untrue or any alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to information
provided by the Company on the one hand or the Underwriters on the other, the intent of the
parties and their relative knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The Company and the Underwriters agree that it
would not be just and equitable if contribution were determined by pro rata allocation or
any other method of allocation which does not take account of the equitable considerations
referred to above. Notwithstanding the provisions of this paragraph (d), no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person who controls an Underwriter
within the meaning of either the Act or the Exchange Act and each director, officer,
employee and agent of an Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls the Company within the meaning of either the Act
or the Exchange Act, each officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same rights to contribution as
the Company, subject in each case to the applicable terms and conditions of this paragraph
(d).
9. Default by an Underwriter. If any one or more Underwriters shall fail to purchase
and pay for any of the Securities agreed to be purchased by such Underwriter or
Underwriters hereunder and such failure to purchase shall constitute a default in the
performance of its or their obligations under this Agreement, the remaining Underwriters
shall be obligated severally to take up and pay for (in the respective proportions which
the principal amount of Securities set forth opposite their names in Schedule I 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 I 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 Supplement or in any other documents or arrangements may be effected. Nothing
contained in this
Page 21
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. Certain Acknowledgements by the Company. The Company acknowledges and agrees that
the Underwriters are acting solely in the capacity of an arm's length contractual
counterparty to the Company with respect to the offering of Securities contemplated hereby
(including in connection with determining the terms of the offering) and not as a financial
advisor or a fiduciary to, or an agent of, the Company or any other person. Additionally,
neither the Representative nor any other Underwriter is advising the Company or any other
person as to any legal, tax, investment, accounting or regulatory matters in any
jurisdiction. The Company shall consult with its own advisors concerning such matters and
shall be responsible for making its own independent investigation and appraisal of the
transactions contemplated hereby, and the Underwriters shall have no responsibility or
liability to the Company with respect thereto. Any review by the Underwriters of the
Company, the transactions contemplated hereby or other matters relating to such
transactions will be performed solely for the benefit of the Underwriters and shall not be
on behalf of the Company.
11. 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 time (i) trading in the Company's
Common Stock shall have been suspended by the Commission or the New York Stock Exchange or
trading in securities generally on the New York Stock Exchange shall have been suspended or
limited or minimum prices shall have been established on such Exchange, (ii) a banking
moratorium shall have been declared either by Federal or New York State authorities or
(iii) there shall have occurred any outbreak or escalation of hostilities, declaration by
the United States of a national emergency or war, or other calamity or crisis the effect of
which on financial markets is such as to make it, in the sole judgment of the
Representatives, impractical or inadvisable to proceed with the offering or delivery of the
Securities as contemplated by the Preliminary Prospectus Supplement and the Final
Prospectus Supplement (exclusive of any supplement thereto).
12. 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.
13. Notices. All communications hereunder will be in writing and effective only on
receipt, and, if sent to the Representatives, will be mailed, delivered or sent by
facsimile transmission to each of Banc of America Securities LLC, Bank of America Tower,
One Bryant Park, New York, New York 10036, Attention: High Grade Debt Capital Markets
Transaction Management/Legal (fax no.: (000) 000-0000), Citigroup Global Markets Inc., 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: General Counsel (fax no.: (212)
000-0000), Deutsche Bank Securities Inc., 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Investment Grade Syndicate Desk, Third Floor (fax no.: (000) 000-0000), and X.X.
Xxxxxx Securities Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: High Grade
Syndicate
Page 22
Desk - 8th Floor (fax no.: (000) 000-0000); or, if sent to the Company, will be
mailed, delivered or sent by facsimile transmission to Southern California Edison Company,
Assistant Treasurer, 0000 Xxxxxx Xxxxx Xxx., Xxxxxxxx, XX 00000 (fax no.: (000) 000-0000)
and confirmed to the attention of the General Counsel at the same address, c/o Xxxxxxx
Xxxxx (fax no.: (000) 000-0000).
14. 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.
15. Applicable Law and Waiver of Jury Trial. (a) 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.
(b) The Company and each of the Underwriters 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.
16. 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.
17. Entire Agreement. 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.
18. Headings. The section headings used herein are for convenience only and shall not
affect the construction hereof.
19. Definitions. The terms which 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 prospectus referred to in paragraph 1(a) above
contained in the Registration Statement at the Effective Date.
"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.
"Commission" shall mean the Securities and Exchange Commission.
"Disclosure Package" shall mean (i) the Preliminary Prospectus Supplement, as
amended and supplemented to the Execution Time, (ii) the Issuer Free Writing
Prospectuses, if any, identified in Schedule III hereto, (iii) the Final Term Sheet,
and (iv)
Page 23
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 become effective.
"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 the date and time that this Agreement is executed
and delivered by the parties hereto.
"Final Prospectus Supplement" 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.
"Initial Sale Time" shall mean 4:15 p.m. (Eastern time) on the date of this
Underwriting Agreement.
"Issuer Free Writing Prospectus" shall mean an issuer free writing prospectus,
as defined in Rule 433.
"Material Adverse Effect" shall mean, with respect to the Company, any effect
that is materially adverse to the condition (financial or otherwise), prospects,
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.
"Preliminary Prospectus Supplement" shall mean any preliminary prospectus
supplement to the Base Prospectus which describes the Securities and the offering
thereof and is used prior to filing of the Final Prospectus Supplement, together with
the Base Prospectus.
"Registration Statement" shall mean the registration statement referred to in
paragraph 1(a) above, including exhibits and financial statements, 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.
Page 24
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,
SOUTHERN CALIFORNIA EDISON COMPANY
By: Xxxxxx X. Xxxxxx
----------------
Name: Xxxxxx X. Xxxxxx
Title: Assistant Treasurer
[Underwriting Agreement Signature Page - 1 of 2]
Page 25
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
BANC OF AMERICA SECURITIES LLC
By: Xxxx Xxxxx
-------------------------------
Name: Xxxx Xxxxx
Title: Principal
CITIGROUP GLOBAL MARKETS INC.
By: Xxxxx X. Xxxxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Managing Director
DEUTSCHE BANK SECURITIES INC. DEUTSCHE BANK SECURITIES INC.
By: Xxx Xxxxxxxxxxx By: Xxxx Xxxxxxxxxx
------------------------------- -------------------------------
Name: Xxx Xxxxxxxxxxx Name: Xxxx Xxxxxxxxxx
Title: Managing Director Title: Director
X.X. XXXXXX SECURITIES INC.
By: Xxxxxx Xxxxxxxxx
-------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Vice President
For themselves and the other several
Underwriters named in Schedule I to
the foregoing Agreement.
[Underwriting Agreement Signature Page - 2 of 2]
Page 26
SCHEDULE I
Principal Amount
of Securities to
Underwriter be Purchased
Banc of America Securities LLC........................ $110,000,000
Citigroup Global Markets Inc.......................... $110,000,000
Deutsche Bank Securities Inc.......................... $110,000,000
X.X. Xxxxxx Securities Inc............................ $110,000,000
UBS Securities LLC.................................... $35,000,000
Xxxxxxx Capital Markets, LLC.......................... $15,000,000
XX Xxxx Capital, Inc.................................. $10,000,000
Total.......................................... $500,000,000
Page 27
SCHEDULE II
$500,000,000
5.75 % First and Refunding Mortgage Bonds, Series 2008C, Due 2014
SUMMARY OF TERMS
Security: 5.75 % First and Refunding Mortgage Bonds, Series 2008C, Due 2014
Issuer: Southern California Edison Company ("SCE," or the "Company")
Principal Amount: $500,000,000
A2/A/A+ (Xxxxx'x / S&P/ Fitch)
Ratings of Note: A securities rating is not a recommendation to buy,
Securities: sell or hold securities and may be subject to revision or
withdrawal at any time.
Trade Date: October 7, 2008
Settlement Date: October 15, 2008 (T+5)
Maturity: March 15, 2014
Benchmark US 3.125% due September 30, 2013
Treasury:
Benchmark US 2.462%
Treasury yield:
Spread to +340 bps
Benchmark US
Treasury:
Xxxxxxx Xxxxx: 5.862%
Coupon: 5.75%
Coupon Payment March 15 and September 15
Dates:
First Coupon March 15, 2009
Payment Date:
Public Offering 99.492%
Price:
Optional Callable at any time, in whole or in part, at a "make
Redemption: whole" premium of T+50 bps
CUSIP/ISIN: 000000XX0 / US842400FK44
Joint Banc of America Securities LLC ("Banc of America")
Book-running Citigroup Global Markets Inc. ("Citi")
Managers: Deutsche Bank Securities Inc. ("Deutsche Bank")
X.X. Xxxxxx Securities Inc. ("X.X. Xxxxxx")
UBS Securities LLC
Co-managers: Xxxxxxx Capital Markets, LLC
XX Xxxx Capital, Inc.
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 XXXXX on the SEC web site at xxx.xxx.xxx. 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 0-000-000-0000 for Banc of America,
by calling 0-000-000-0000 for Citi, by calling 0-000-000-0000 for Deutsche Bank or by
calling 0-000-000-0000 for X.X. Xxxxxx.
Page 28
SCHEDULE III
Schedule of Free Writing Prospectuses included in the Disclosure Package
NONE
Page 29
