<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 21, 1998
FILE NO. 333-
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------
DOMINION RESOURCES, INC. DOMINION RESOURCES CAPITAL TRUST I
(EXACT NAME OF REGISTRANT AS SPECIFIED (EXACT NAME OF REGISTRANT AS SPECIFIED
IN ITS CHARTER) IN ITS TRUST AGREEMENT)
DELAWARE
(STATE OR OTHER JURISDICTION OF
VIRGINIA INCORPORATION OR ORGANIZATION)
(STATE OR OTHER JURISDICTION OF
INCORPORATION OR ORGANIZATION)
6719
4911 (PRIMARY STANDARD INDUSTRIAL
(PRIMARY STANDARD INDUSTRIAL CLASSIFICATION CODE NUMBER)
CLASSIFICATION CODE NUMBER)
54-1888842
54-1229715 (I.R.S. EMPLOYER IDENTIFICATION NO.)
(I.R.S. EMPLOYER IDENTIFICATION NO.)
DOMINION RESOURCES, INC.
901 EAST BYRD STREET-SUITE 1700
RICHMOND, VIRGINIA 23219-6111
(804) 775-5700
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANTS' PRINCIPAL EXECUTIVE OFFICES)
PATRICIA A. WILKERSON
W.H. RIGGS, JR.
901 EAST BYRD STREET-SUITE 1700
RICHMOND, VIRGINIA 23219-6111
(804) 775-5700
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE OF EACH REGISTRANT)
COPY TO:
JAMES F. STUTTS
DOMINION RESOURCES, INC.
901 EAST BYRD STREET-SUITE 1700
RICHMOND, VIRGINIA 23219-6111
(804) 775-5700
--------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date.
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance
with General Instruction G, please check the following box. [_]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_]
If this form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
CALCULATION OF REGISTRATION FEE
<TABLE>
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
<CAPTION>
TITLE OF EACH CLASS AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
OF SECURITIES TO BE TO BE OFFERING PRICE AGGREGATE OFFERING REGISTRATION
REGISTERED REGISTERED PER UNIT(1) PRICE(1) FEE
- ------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Capital Securities of
Dominion Resources
Capital Trust I........ $250,000,000 100% $250,000,000 $73,750.00
- ------------------------------------------------------------------------------------------
Junior Subordinated
Deferrable Interest
Debentures of Dominion
Resources, Inc.(2)..... -- -- -- N/A
- ------------------------------------------------------------------------------------------
Dominion Resources, Inc.
Guarantee with respect
to Capital
Securities(3).......... -- -- -- N/A
- ------------------------------------------------------------------------------------------
Rights of holders of
Junior Subordinated
Debentures under the
Indenture. Rights of
holders of New Capital
Securities of Dominion
Resources Capital Trust
I under a Trust
Agreement. Rights of
holders of such Capital
Securities under the
New Guarantee and
certain backup
undertakings as
described herein ...... -- -- -- N/A
- ------------------------------------------------------------------------------------------
Total................... $250,000,000(4) 100% $250,000,000(4) $73,750.00
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of computing the registration fee.
(2) The Junior Subordinated Deferrable Interest Debentures issued by Dominion
Resources, Inc. on December 8, 1997 were originally purchased by Dominion
Resources Capital Trust I with the proceeds of the sale of the Capital
Securities issued by Dominion Resources Capital Trust I on December 8,
1997. No separate consideration will be received for the Junior
Subordinated Deferrable Interest Debentures of Dominion Resources, Inc.
covered hereby (the "Junior Subordinated Debentures") distributed upon any
liquidation of Dominion Resources Capital Trust I.
(3) No separate consideration will be received for the Dominion Resources,
Inc. Guarantee.
(4) Such amount represents the initial public offering price of the Dominion
Resources Capital Trust I Capital Securities to be exchanged hereunder and
the principal amount of Junior Subordinated Debentures that may be
distributed to holders of Capital Securities upon any liquidation of
Dominion Resources Capital Trust I.
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE SEC, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY +
+OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT +
+BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR +
+THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE +
+SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE +
+UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF +
+ANY SUCH STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED APRIL 21, 1998
PROSPECTUS
DOMINION RESOURCES CAPITAL TRUST I
OFFER TO EXCHANGE ITS 7.83% CAPITAL SECURITIES WHICH HAVE BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933 FOR ANY AND ALL OF ITS OUTSTANDING 7.83% CAPITAL
SECURITIES
(LIQUIDATION AMOUNT $1,000 PER CAPITAL SECURITY) FULLY AND UNCONDITIONALLY
GUARANTEED, AS DESCRIBED HEREIN, BY DOMINION RESOURCES, INC.
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE
AT 5:00 P.M., NEW YORK CITY TIME ON , 1998,
UNLESS EXTENDED.
Dominion Resources Capital Trust I, a trust created under the laws of the
State of Delaware (the "Trust"), hereby offers, upon the terms and subject to
the conditions set forth in this Prospectus (as the same may be amended or
supplemented from time to time, the "Prospectus") and in the accompanying
Letter of Transmittal (which together constitute the "Exchange Offer"), to
exchange up to $250,000,000 aggregate Liquidation Amount of its 7.83% Capital
Securities (the "New Capital Securities") which have been registered under the
Securities Act of 1933, as amended (the "Securities Act"), pursuant to a
Registration Statement (as defined under "Available Information") of which this
Prospectus constitutes a part, for a like aggregate Liquidation Amount of its
outstanding 7.83% Capital Securities (the "Old Capital Securities"), of which
$250,000,000 aggregate Liquidation Amount is outstanding. Pursuant to the
Exchange Offer, Dominion Resources, Inc., a Virginia corporation (the "Company"
or "Dominion Resources"), will exchange its guarantee of the payment of
Distributions and payments on liquidation or redemption of the Old Capital
Securities and various undertakings in respect of the Old Capital Securities
(the "Old Guarantee") for a like guarantee of the New Capital Securities and
various undertakings in respect of the New Capital Securities (the "New
Guarantee") and all of its 7.83% Junior Subordinated Deferrable Interest
Debentures (the "Old Junior Subordinated Debentures") for a like aggregate
principal amount of its 7.83% Junior Subordinated Deferrable Interest
Debentures (the "New Junior Subordinated Debentures"), which New Guarantee and
New Junior Subordinated Debentures also have been registered under the
Securities Act. The Old Capital Securities, the Old Guarantee, Old Junior
Subordinated Debentures are collectively referred to herein as the "Old
Securities" and the New Capital Securities, the New Guarantee and the New
Junior Subordinated Debentures are collectively referred to herein as the "New
Securities."
The forms and terms of the New Securities are identical in all material
respects to the respective forms and terms of the Old Securities, except that
(i) the New Securities have been registered under the Securities Act and,
therefore, will not be subject to certain restrictions on transfer applicable
to the Old Securities, (ii) the New Capital Securities will not provide for any
increase in the Distribution rate thereon and (iii) the New Junior Subordinated
Debentures will not provide for any increase in the interest rate thereon. See
"Description of Securities" and "Description of Old Securities." The New
Capital Securities are being offered for exchange, and the New Guarantee and
New Junior Subordinated Debentures will be exchanged in order to satisfy
certain obligations of the Company and the Trust under three Registration
Rights Agreements, each dated as of December 8, 1997 (collectively, the
"Registration Rights Agreement"), among the Company, the Trust and the Initial
Purchasers (as defined herein). In the event that the Exchange Offer is
consummated, any Old Capital Securities that remain outstanding and the New
Capital Securities issued in the Exchange Offer will vote together as a single
class for purposes of determining whether holders of the requisite percentage
in outstanding Liquidation Amount thereof have taken certain actions or
exercised certain rights under the Amended and Restated Trust Agreement of the
Trust (the "Trust Agreement"). In the event the Exchange Offer is consummated,
(i) the New Guarantee will apply to any Old Capital Securities that remain
outstanding and to any New Capital Securities issued in the Exchange Offer,
(ii) the Old Junior Subordinated Debentures will be retired and canceled and
(iii) the New Junior Subordinated Debentures will be issued to The Chase
Manhattan Bank, as Property Trustee under the Trust.
-----------
SEE "RISK FACTORS" COMMENCING ON PAGE 14 FOR CERTAIN INFORMATION THAT SHOULD
BE CONSIDERED BY HOLDERS WHO TENDER OLD CAPITAL SECURITIES IN THE EXCHANGE
OFFER.
-----------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
-----------
The date of this Prospectus is , 1998.
<PAGE>
Old Capital Securities may be tendered for exchange on or prior to 5:00
p.m., New York City time, on , 1998 (such time on such date being
hereinafter called the "Expiration Date"), unless the Exchange Offer is
extended by the Company and the Trust (in which case the term "Expiration
Date" shall mean the latest date and time to which the Exchange Offer is
extended). Tenders of Old Capital Securities may be withdrawn at any time on
or prior to the Expiration Date. The Exchange Offer is not conditioned upon
any minimum Liquidation Amount of Old Capital Securities being tendered for
exchange. However, the Exchange Offer is subject to certain conditions which
may be waived by the Company and the Trust in their sole discretion and to the
terms and provisions of the Registration Rights Agreement. Old Capital
Securities may be tendered for exchange in whole or in part having a
Liquidation Amount of not less than $100,000 (100 Old Capital Securities) or
any integral multiple of $1,000 Liquidation Amount (1 Old Capital Security) in
excess thereof. The Company has agreed to pay all expenses of the Exchange
Offer. See "The Exchange Offer--Fees and Expenses." Each New Capital Security
will accumulate Distributions from the most recent Distribution Date (as
defined in "Description of Securities--Description of Capital Securities--
Distributions") on the Old Capital Securities surrendered in exchange for such
New Capital Securities or, if no Distributions have been paid or provided for
on such Old Capital Securities, from December 8, 1997. As a result, holders of
Old Capital Securities that are accepted for exchange will not receive
accumulated Distributions on such Old Capital Securities for any period from
and after the most recent Distribution Date on such Old Capital Securities or,
if no Distributions have been paid or provided for on such Old Capital
Securities, from and after December 8, 1997 , and such holders will be deemed
to have waived the right to receive any Distributions on such Old Capital
Securities. This Prospectus, together with the Letter of Transmittal, is being
sent to all registered holders of Old Capital Securities as of , 1998.
Neither the Company nor the Trust will receive any cash or other proceeds
from the issuance of the New Capital Securities offered hereby. No dealer-
manager is being used in connection with this Exchange Offer. See "Use of
Proceeds From Sale of Old Capital Securities" and "Plan of Distribution."
As the context may require, unless expressly stated otherwise, (i) "Capital
Securities" means the Old Capital Securities and, in the event the Exchange
Offer is consummated, the New Capital Securities, (ii) "Junior Subordinated
Debentures" means the Old Junior Subordinated Debentures and, in the event the
Exchange Offer is consummated, the New Junior Subordinated Debentures, (iii)
"Guarantee" means the Old Guarantee and, in the event the Exchange Offer is
consummated, the New Guarantee and (iv) "Securities" means the Old Securities
and, in the event the Exchange Offer is consummated, the New Securities. In
addition, as used herein, (i) the "Indenture" means the Junior Subordinated
Indenture dated as of December 1, 1997, as amended and supplemented from time
to time, between the Company and The Chase Manhattan Bank, as trustee (the
"Debenture Trustee"), (ii) the "Trust Agreement" means the Amended and
Restated Trust Agreement dated as of December 8, 1997 relating to the Trust
among the Company, as Depositor, The Chase Manhattan Bank, as Property Trustee
(the "Property Trustee"), Chase Manhattan Bank Delaware, as Delaware Trustee
(the "Delaware Trustee"), the Administrative Trustees named therein (the
"Administrative Trustees" and, collectively with the Property Trustee and
Delaware Trustee, the "Issuer Trustees") and the holders, from time to time,
of the Capital Securities, (iii) the "Guarantee Agreement" means the Capital
Securities Guarantee Agreement dated as of December 8, 1997 (the "Old
Guarantee Agreement") between the Company and The Chase Manhattan Bank, as
trustee (the "Guarantee Trustee"), and, in the event the Exchange Offer is
consummated, the Capital Securities Guarantee Agreement to be entered into
between the Company and the Guarantee Trustee (the "New Guarantee Agreement")
relating to the Old Guarantee and the New Guarantee, respectively, and (iv)
the "Expense Agreement" means the Agreement as to Expenses and Liabilities
dated as of December 8, 1997 between the Company and the Trust.
The Capital Securities represent undivided beneficial interests in the
assets of the Trust. Dominion Resources is the owner of all of the common
securities of the Trust (the "Common Securities" and, collectively with the
Capital Securities, the "Trust Securities"). The Chase Manhattan Bank is the
Property Trustee. The Trust exists for the purpose of issuing the Trust
Securities and investing the proceeds thereof in the Junior Subordinated
Debentures. The Junior Subordinated Debentures mature on December 1, 2027 (the
"Stated
1
<PAGE>
Maturity"). The Capital Securities have a preference under certain
circumstances with respect to cash distributions and amounts payable on
liquidation, redemption or otherwise over the Common Securities. See
"Description of Securities--Description of Capital Securities--Subordination
of Common Securities."
Holders of Capital Securities are entitled to receive preferential
cumulative cash distributions and the holder of the Common Securities is
entitled to receive cumulative cash distributions arising from the payment of
interest on the Junior Subordinated Debentures accumulating from December 8,
1997 and payable semi-annually in arrears on the 1st day of June and December
of each year, commencing June 1, 1998, at the annual rate of 7.83% of the
Liquidation Amount of $1,000 per Capital Security and at the annual rate of
7.83% of the Liquidation Amount of $1,000 per Common Security
("Distributions"). The Company has the right to defer payments of interest on
the Junior Subordinated Debentures at any time or from time to time for a
period not exceeding 10 consecutive semi-annual periods with respect to each
deferral period (each, an "Extension Period"), provided that no Extension
Period may end on a date other than an Interest Payment Date or extend beyond
the Stated Maturity. At any time following the termination of any Extension
Period and the payment of all amounts then due, the Company may elect to begin
a new Extension Period, subject to the foregoing requirements. If interest
payments on the Junior Subordinated Debentures are so deferred, Distributions
on the Capital Securities and on the Common Securities will also be deferred
and the Company will not be permitted, subject to certain exceptions described
herein, to declare or pay any cash distributions with respect to the Company's
capital stock (which includes common and preferred stock) or to make any
payment with respect to debt securities of the Company that rank on a parity
with or junior to the Junior Subordinated Debentures. During an Extension
Period, interest on the Junior Subordinated Debentures will continue to accrue
(and the amount of Distributions to which holders of the Capital Securities
are entitled will accumulate) at the rate of 7.83% per annum, compounded semi-
annually, and holders of Capital Securities will be required to accrue
interest income for United States federal income tax purposes. See
"Description of Securities--Description of Junior Subordinated Debentures--
Option to Defer Interest Payments" and "Certain Federal Income Tax
Consequences--Interest Income and Original Issue Discount."
The Company has, through the Guarantee, the Guarantee Agreement, the Trust
Agreement, the Junior Subordinated Debentures, the Indenture and the Expense
Agreement, taken together, fully, irrevocably and unconditionally guaranteed
on a subordinated basis all of the Trust's obligations under the Capital
Securities. See "Relationship Among the Capital Securities, the Junior
Subordinated Debentures and the Guarantee--Full and Unconditional Guarantee."
The Guarantee of the Company guarantees the payment of Distributions and
payments on liquidation or redemption of the Capital Securities, but only in
each case to the extent of funds held by the Trust on hand legally available
therefor, as described herein. See "Description of Securities--Description of
Guarantee." If the Company does not make interest payments on the Junior
Subordinated Debentures held by the Trust, the Trust will have insufficient
funds to pay Distributions on the Capital Securities. The Guarantee does not
cover payment of Distributions when the Trust does not have sufficient funds
on hand legally available therefor to pay such Distributions. In the event of
a Debenture Event of Default (as defined in "Description of Securities--
Description of Junior Subordinated Debentures--Debenture Events of Default")
under the Indenture, a holder of Capital Securities may institute a legal
proceeding directly against the Company to enforce payment of such
Distributions to such holder. See "Description of Securities--Description of
Junior Subordinated Debentures--Enforcement of Certain Rights By Holders of
Capital Securities." The obligations of the Company under the Guarantee and
the Junior Subordinated Debentures are unsecured and are subordinate and
junior in right of payment to all Senior Indebtedness (as defined in
"Description of Securities--Description of Junior Subordinated Debentures--
Subordination") of the Company. Senior Indebtedness of the Company includes
existing and future senior debt, senior subordinated debt and subordinated
debt of the Company. As of December 31, 1997, there was approximately $423.2
million of Senior Indebtedness of the Company outstanding. Additionally,
because the Company is a holding company that conducts all of its operations
through its subsidiaries, the claims of the Property Trustee as the holder of
the Junior Subordinated Debentures on behalf of the Trust and the Guarantee
will be effectively subordinated to the claims of the creditors of the
Company's subsidiaries. As of December 31, 1997, the Company's subsidiaries
had $8.76 billion of outstanding debt and
2
<PAGE>
Virginia Elective and Power Company, the Company's largest subsidiary had
6,890,140 outstanding shares of preferred stock ($100 per share liquidation
preference).
The Capital Securities are subject to mandatory redemption in whole but not
in part (i) at the Stated Maturity upon repayment of the Junior Subordinated
Debentures at a redemption price equal to the principal amount of, plus
accrued interest on, the Junior Subordinated Debentures (the "Maturity
Redemption Price"), (ii) contemporaneously with the optional prepayment by the
Company of the Junior Subordinated Debentures upon the occurrence and
continuation of a Tax Event or an Investment Company Event (each as defined in
"Risk Factors--Tax Event or Investment Company Event Redemption") (A) prior to
December 1, 2007, at the Event Redemption Price (which is equal to the Event
Prepayment Price (as defined below) (the "Event Redemption Price") and (B)
thereafter, at the Optional Redemption Price and (iii) in the case of the
optional prepayment of the Junior Subordinated Debentures on or after December
1, 2007, the Optional Redemption Price. The Maturity Redemption Price, the
Event Redemption Price and the Optional Redemption Price may be referred to
herein as the "Redemption Price." See "Description of Securities--Description
of Capital Securities--Redemption." The Junior Subordinated Debentures are
prepayable prior to the Stated Maturity at the option of the Company (i) on or
after December 1, 2007, in whole or in part, at any time at a prepayment price
(the "Optional Prepayment Price") equal to 103.915% of the principal amount
thereof at December 1, 2007, declining ratably on each December 1 thereafter
to 100% on or after December 1, 2017 plus, accrued interest thereon to the
date of prepayment or (ii) at any time, in whole but not in part, upon the
occurrence and continuation of a Tax Event or an Investment Company Event at
the Event Prepayment Price equal to the greater of (a) 100% of the principal
amount thereof or (b) as determined by the Quotation Agent (as defined in
"Description of Securities--Description of Junior Subordinated Debentures--Tax
Event or Investment Company Event Prepayment"), the sum of the present value
of 100% of the principal amount that would be payable on January 1, 2027,
together with the present values of scheduled payments of interest from the
prepayment date to January 1, 2028, in each case, discounted to the prepayment
date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-
day months) at the Adjusted Treasury Rate (as defined in "Description of
Securities--Description of Junior Subordinated Debentures--Tax Event or
Investment Company Event Prepayment"), plus, in each case, accrued interest
thereon to but excluding the date of prepayment. The Event Prepayment Price
may also be referred to herein as the "Prepayment Price." See "Description of
Securities--Description of Junior Subordinated Debentures" and "--Tax Event or
Investment Company Event Prepayment."
The Company has the right to terminate the Trust at any time and, after
satisfaction of liabilities to creditors of the Trust as required by
applicable laws, cause the Junior Subordinated Debentures to be distributed to
the holders of the Capital Securities in liquidation of the Trust subject to
the Company having received an opinion of counsel to the effect that such
distribution will not be a taxable event to holders of Capital Securities. See
"Description of Securities--Capital Securities--Liquidation of the Trust and
Distribution of Junior Subordinated Debentures."
The Old Capital Securities are eligible for trading in the Private
Offerings, Resales and Trading through Automated Linkage ("PORTAL") Market of
the National Association of Securities Dealers Inc. ("NASD"). The Company does
not intend to apply for listing of the Old Capital Securities on any
securities exchange or for inclusion of the New Capital Securities on any
automated quotation system.
Any Old Capital Securities not tendered and accepted in the Exchange Offer
will remain outstanding and will be entitled to the same rights and will be
subject to the same limitations applicable thereto under the Trust Agreement
(except for those rights which terminate upon consummation of the Exchange
Offer). Following consummation of the Exchange Offer, the holders of any Old
Capital Securities that remain outstanding will continue to be subject to all
of the existing restrictions upon transfer thereof and neither the Company nor
the Trust will have any further obligation to such holders (other than under
certain limited circumstances) to provide for registration under the
Securities Act of the Old Capital Securities held by them. To the extent that
Old Capital Securities are tendered and accepted in the Exchange Offer, a
holder's ability to sell untendered Old Capital Securities could be adversely
affected. See "Risk Factors--Consequences of a Failure to Exchange Old Capital
Securities."
3
<PAGE>
THIS PROSPECTUS AND THE RELATED LETTER OF TRANSMITTAL CONTAIN IMPORTANT
INFORMATION. HOLDERS OF OLD CAPITAL SECURITIES ARE URGED TO READ THIS
PROSPECTUS AND THE RELATED LETTER OF TRANSMITTAL CAREFULLY BEFORE DECIDING
WHETHER TO TENDER THEIR OLD CAPITAL SECURITIES PURSUANT TO THE EXCHANGE OFFER.
THE NEW CAPITAL SECURITIES WILL BE ISSUED, AND MAY BE TRANSFERRED, ONLY IN
BLOCKS HAVING A LIQUIDATION AMOUNT OF NOT LESS THAN $100,000 (100 NEW CAPITAL
SECURITIES). ANY TRANSFER, SALE OR OTHER DISPOSITION OF NEW CAPITAL SECURITIES
IN A BLOCK HAVING A LIQUIDATION AMOUNT OF LESS THAN $100,000 SHALL BE DEEMED
TO BE VOID AND OF NO LEGAL EFFECT WHATSOEVER. ANY SUCH TRANSFEREE SHALL BE
DEEMED NOT TO BE THE HOLDER OF SUCH NEW CAPITAL SECURITIES FOR ANY PURPOSE,
INCLUDING BUT NOT LIMITED TO THE RECEIPT OF DISTRIBUTIONS ON SUCH NEW CAPITAL
SECURITIES, AND SUCH TRANSFEREE SHALL BE DEEMED TO HAVE NO INTEREST WHATSOEVER
IN SUCH NEW CAPITAL SECURITIES.
4
<PAGE>
AVAILABLE INFORMATION
The Company files annual, quarterly and special reports, proxy statements
and other information with the SEC. Its SEC filings are available to the
public over the Internet at the SEC's web site at http://www.sec.gov. You may
also read and copy any document the Company files at the SEC's public
reference rooms in Washington, D.C., New York, New York and Chicago, Illinois.
Please call the SEC at 1-800-SEC-0330 for further information on the public
reference rooms.
No separate financial statements of the Trust have been included in this
Offering Memorandum. The Company and the Trust do not consider that such
financial statements would be material to holders of the Capital Securities
because the Trust is a newly formed special purpose entity, has no operating
history or independent operations and is not engaged in and does not propose
to engage in any activity other than holding as trust assets the Junior
Subordinated Debentures and issuing the Trust Securities. See "Dominion
Resources Capital Trust I", "Description of Capital Securities", "Description
of Junior Subordinated Debentures" and "Description of Guarantee". In
addition, the Company does not expect that the Trust will file reports under
the Exchange Act with the SEC.
In connection therewith, the Company represents the following:
(i) the Capital Securities will be presented on the consolidated balance
sheets of the Company as a separate line item entitled "Company-obligated
Mandatorily Redeemable Preferred Capital Securities of Subsidiary Trust
holding solely the Company's Securities";
(ii) a footnote to the consolidated financial statements of the Company
will disclose that the sole asset of the Trust is $257,732,000 aggregate
principal amount of the Company's 7.83% Junior Subordinated Deferrable
Interest Debentures due December 1, 2027; and
(iii) it will include in an audited footnote to the consolidated
financial statements of the Company disclosure that (x) the Trust is wholly
owned; (y) the sole asset of the Trust is $257,732,000 aggregate principal
amount of the Company's 7.83% Junior Subordinated Deferrable Interest
Debentures due December 1, 2027; and (z) the back-up guarantees, in the
aggregate, provide a full and unconditional guarantee of the Trust's
obligations under the Capital Securities.
This Prospectus constitutes a part of a registration statement on Form S-4
(the "Registration Statement") filed by the Company and the Trust with the SEC
under the Securities Act. This Prospectus does not contain all the information
set forth in the Registration Statement, certain parts of which are omitted in
accordance with the rules and regulations of the SEC, and reference is hereby
made to the Registration Statement and to the exhibits relating thereto for
further information with respect to the Company and the New Securities. Any
statements contained herein concerning the provisions of any document are not
necessarily complete, and, in each instance, reference is made to the copy of
such document filed as an exhibit to the Registration Statement or otherwise
filed with the SEC. Each such statement is qualified in its entirety by such
reference.
5
<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows the Company to "incorporate by reference" the information it
files with them, which means that the Company can disclose important
information to you be referring you to those documents. The information
incorporated by reference is an important part of this Offering Memorandum,
and information that the Company files later with the SEC will automatically
update and supersede this information. The Company incorporates by reference
the documents listed below and any future filings made with the SEC under
Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934
until the sale of all of these securities is complete.
. Annual Report on Form 10-K for the year ended December 31, 1997.
This Prospectus incorporates documents by reference which are not included
in this Prospectus. These documents are available upon request from Dominion
Resources, Inc., 901 East Byrd Street - Suite 1700, Richmond, Virginia 23219-
6111, telephone: (804) 775-5700, Attention: Corporate Secretary. In order to
ensure timely delivery of the documents, any request should be made by May 10,
1998.
As used herein, the terms "Prospectus" and "herein" mean this Prospectus,
including the documents incorporated or deemed to be incorporated herein by
reference, as the same may be amended, supplemented or otherwise modified from
time to time. Statements contained in this Prospectus as to the contents of
any contract or other document referred to herein do not purport to be
complete, and where reference is made to the particular provisions of such
contract or other document, such provisions are qualified in all respects by
reference to all of the provisions of such contract or other document.
6
<PAGE>
SUMMARY
The following summary is qualified in its entirety by the more detailed
information appearing elsewhere in this Prospectus or incorporated by reference
herein.
DOMINION RESOURCES CAPITAL TRUST I
The Trust is a statutory Delaware business trust, created on October 31, 1997
by the filing of a certificate of trust with the Delaware Secretary of State
and the concurrent execution of an initial trust agreement. The Trust will be
governed by the Trust Agreement executed by the Company, as Depositor, The
Chase Manhattan Bank, as Property Trustee, Chase Manhattan Bank Delaware, as
Delaware Trustee, and the Administrative Trustees named therein. The Trust's
business and affairs are conducted by the Issuer Trustees: The Chase Manhattan
Bank, as Property Trustee, Chase Manhattan Bank Delaware, as Delaware Trustee,
and two individual Administrative Trustees who are officers of the Company or
an affiliate. The Trust exists for the exclusive purposes of (i) issuing and
selling the Trust Securities and Exchange Capital Securities, (ii) using the
proceeds from the sale of the Trust Securities to acquire the Junior
Subordinated Debentures issued by the Company, (iii) making Distributions, (iv)
exchanging the Old Junior Subordinated Debentures for Exchange Debentures
pursuant to the Exchange Offer and (v) engaging in only those other activities
necessary, advisable or incidental thereto (such as registering the transfer of
the Capital Securities). Accordingly, the Junior Subordinated Debentures will
be the sole assets of the Trust, and payments by the Company under the Junior
Subordinated Debentures and the Expense Agreement will provide the sole revenue
of the Trust. All of the Common Securities will be owned by the Company.
The principal executive office of the Trust is c/o Dominion Resources, Inc.,
901 East Byrd Street, Suite 1700, Richmond, Virginia 23219-6111, and its
telephone number is (804) 775-5700.
DOMINION RESOURCES, INC.
Dominion Resources, Inc. is a holding company headquartered in Richmond,
Virginia. Its principal operating subsidiaries are:
. Virginia Electric and Power Company, principally an electric utility
serving two million residences and businesses in a 30,000-square-mile
region from northern Virginia to northeastern North Carolina. It owns
and operates nuclear, coal, natural gas, oil and hydroelectric power
stations;
. Dominion Energy, Inc., an independent power and natural gas subsidiary.
It has ownership and operating interests in 28 generating facilities in
six U.S. states, Argentina, Belize, Bolivia and Peru. This company has
about 649 billion cubic feet of proven natural gas reserves throughout
several major regions of the United States and western Canada;
. Dominion Capital, Inc., a financial services and real estate subsidiary,
with commercial, mortgage and consumer lending entities, a full-service
commercial real estate company, a 50% limited partnership interest in a
hydroelectric station in Louisiana, and a variety of debt and equity
investments; and
. East Midlands Electricity plc, principally an electric power
distribution and supply company serving 2.3 million homes and businesses
in the East Midlands region of the United Kingdom.
7
<PAGE>
THE EXCHANGE OFFER
The Exchange Offer.......... Up to $250,000,000 aggregate Liquidation Amount
of New Capital Securities are being offered in
exchange for a like aggregate Liquidation Amount
of Old Capital Securities. Old Capital Securities
may be tendered for exchange in whole or in part
having a Liquidation Amount of not less than
$100,000 (100 Old Capital Securities) or any
integral multiple of $1,000 Liquidation Amount
(One Old Capital Security) in excess thereof. The
Company and the Trust are making the Exchange
Offer in order to satisfy their obligations under
the Registration Rights Agreement relating to the
Old Securities. For a description of the
procedures for tendering Old Capital Securities,
see "The Exchange Offer--Procedures for Tendering
Old Capital Securities."
Expiration Date............. 5:00 p.m., New York City time, on , 1998
(such time on such date being hereinafter called
the "Expiration Date") unless the Exchange Offer
is extended by the Company and the Trust (in
which case the term "Expiration Date" shall mean
the latest date and time to which the Exchange
Offer is extended). See "The Exchange Offer--
Expiration Date; Extensions; Amendments."
Conditions of the Exchange The Exchange Offer is subject to certain
Offer....................... conditions which may be waived by the Company and
the Trust in their sole discretion and to the
terms and conditions of the Registration Rights
Agreements. The Exchange Offer is not conditioned
upon any minimum Liquidation Amount of Old
Capital Securities being tendered for exchange.
See "The Exchange Offer--Conditions of the
Exchange Offer."
The Company and the Trust expressly reserve the
right in their sole and absolute discretion,
subject to applicable law, at any time and from
time to time, (i) to delay the acceptance of the
Old Capital Securities for exchange, (ii) to
terminate the Exchange Offer (whether or not any
Old Capital Securities have been accepted for
exchange) if the Company or the Trust determines,
in its sole and absolute discretion, that any of
the conditions referred to under "The Exchange
Offer--Conditions of the Exchange Offer" have
occurred or exist or have not been satisfied,
(iii) to extend the Expiration Date and retain
all Old Capital Securities tendered pursuant to
the Exchange Offer, subject, however, to the
right of holders of Old Capital Securities to
withdraw their tendered Old Capital Securities,
and (iv) to waive any condition or otherwise
amend the terms of the Exchange Offer in any
respect. See "The Exchange Offer--Expiration
Date; Extensions; Amendments."
Procedures for Tendering
Old Capital Securities.....
Brokers, dealers, commercial banks, trust
companies and other nominees who hold Old Capital
Securities through The Depository Trust Company
("DTC") may effect tenders by book-entry transfer
in accordance with DTC's Automated Tender Offer
Program ("ATOP"). Holders of such Old Capital
Securities registered in the
8
<PAGE>
name of a broker, dealer, commercial bank, trust
company or other nominee are urged to contact
such person promptly if they wish to tender Old
Capital Securities. In order for Old Capital
Securities to be tendered by a means other than
by book-entry transfer, a Letter of Transmittal
must be completed and signed in accordance with
the instructions contained therein. The Letter of
Transmittal and any other documents required by
the Letter of Transmittal must be delivered to
the Exchange Agent by mail, facsimile, hand
delivery or overnight carrier and either such Old
Capital Securities must be delivered to the
Exchange Agent or specified procedures for
guaranteed delivery must be complied with. See
"The Exchange Offer--Procedures for Tendering Old
Capital Securities."
Letters of Transmittal, certificates for Old
Capital Securities and any other documents
required by the Letter of Transmittal should not
be delivered to the Company or the Trust. Such
documents should only be delivered to the
Exchange Agent. Questions regarding how to tender
and requests for information should be directed
to the Exchange Agent. See "The Exchange Offer--
Exchange Agent."
Withdrawal Rights........... Tenders of Old Capital Securities may be
withdrawn at any time on or prior to the
Expiration Date by delivering a written notice of
such withdrawal to the Exchange Agent in
conformity with certain procedures set forth
below under "The Exchange Offer--Withdrawal
Rights."
Resales of New Capital
Securities.................. Based on certain interpretations by the SEC staff
as set forth in the action letters issued to
third parties, the Company and the Trust believe
that New Capital Securities issued pursuant to
the Exchange Offer in exchange for Old Capital
Securities may be offered for resale, resold and
otherwise transferred by a holder thereof (other
than a holder who (i) is a broker-dealer (ii)
participated in the distribution of the Old
Capital Securities or (iii) is an affiliate of
the Company or the Trust) without further
compliance with the registration and prospectus
delivery requirements of the Securities Act,
provided that such New Capital Securities are
acquired in the ordinary course of such holder's
business and that such holder is not
participating, and has no arrangement or
understanding with any person to participate, in
a distribution (within the meaning of the
Securities Act) of such New Capital Securities.
In the event that the Company's belief is
inaccurate, holders of Exchange Notes who
transfer Exchange Notes in violation of the
prospectus delivery provisions of the Securities
Act and without an exemption from registration
thereunder may incur liability under the
Securities Act. The Company does not assume or
indemnify holders against such liability. The
Company has not sought and does not intend to
seek, its own no-action letter, and there can be
no assurance that the SEC staff would make a
similar determination with respect to the
Exchange Offer. Any holder of Old Capital
Securities who is an "affiliate" of the Company
or the Trust, who participated in distribution of
Old Capital Securities, who intends to
participate in
9
<PAGE>
the Exchange Offer for the purpose of
distributing the New Capital Securities, or who
is a broker-dealer who purchased the Old Capital
Securities from the Trust to resell pursuant to
Rule 144A under the Securities Act ("Rule 144A")
or any other available exemption under the
Securities Act, (a) will not be able to rely on
the interpretations of the SEC staff set forth in
the above-mentioned interpretive letters, (b)
will not be permitted or entitled to tender such
Old Capital Securities in the Exchange Offer and
(c) must comply with the registration and
prospectus delivery requirements of the
Securities Act in connection with any sale or
other transfer of such Old Capital Securities
unless such sale is made pursuant to an exemption
from such requirements. In addition, if any
broker-dealer holds Old Capital Securities
acquired for its own account as a result of
market-making or other trading activities and
exchanges such Old Capital Securities for New
Capital Securities, then such broker-dealer must
deliver a prospectus meeting the requirements of
the Securities Act in connection with any resales
of such New Capital Securities. See "The Exchange
Offer--Resales of the New Capital Securities."
The Company and the Trust believe that broker-
dealers who acquired Old Capital Securities for
their own accounts as a result of market-making
activities or other trading activities
("Participating Broker-Dealers") may fulfill
their prospectus delivery requirements with
respect to the New Capital Securities received
upon exchange of such Old Capital Securities
(other than Old Capital Securities which
represent an unsold allotment from the original
sale of the Old Capital Securities) with this
Prospectus, as it may be amended or supplemented
from time to time. This Prospectus may be used by
a Participating Broker-Dealer during the 90-day
period referred to below in connection with
resales of New Capital Securities received in
exchange for Old Capital Securities where such
Old Capital Securities were acquired by such
Participating Broker-Dealer for its own account
as a result of market-making or other trading
activities. Subject to certain provisions set
forth in the Registration Rights Agreement and to
the limitations described under "The Exchange
Offer--Resale of New Capital Securities," the
Company and the Trust have agreed that this
Prospectus, as it may be amended or supplemented
from time to time, may be used by a Participating
Broker-Dealer in connection with resales of such
New Capital Securities for a period ending 90
days after the Expiration Date or, if earlier,
when all such New Capital Securities have been
disposed of by such Participating Broker-Dealer.
See "Plan of Distribution" and "The Exchange
Offer--Resales of New Capital Securities. "
In that regard, each Participating Broker-Dealer
who surrenders Old Capital Securities pursuant to
the Exchange Offer will be deemed to have agreed,
by execution of the Letter of Transmittal or
delivery of an Agent's Message (as defined under
"The Exchange Offer--Acceptance For Exchange and
Issuance of New Capital Securities") in lieu
thereof, that, upon receipt of notice from the
Company or the
10
<PAGE>
Trust of the occurrence of any event or the
discovery of any fact which makes any statement
contained or incorporated by reference in this
Prospectus untrue in any material respect or
which causes this Prospectus to omit to state a
material fact necessary in order to make the
statements contained or incorporated by reference
herein, in light of the circumstances under which
they were made, not misleading or of the
occurrence of certain other events specified in
the Registration Rights Agreement, such
Participating Broker-Dealer will suspend the sale
of New Capital Securities (or the New Guarantee
or the New Junior Subordinated Debentures, as
applicable) pursuant to this Prospectus until the
Company or the Trust has amended or supplemented
this Prospectus to correct such misstatement or
omission and has furnished copies of the amended
or supplemented Prospectus to such Participating
Broker-Dealer or the Company or the Trust has
given notice that the sale of the New Capital
Securities (or the New Guarantee or the New
Junior Subordinated Debentures, as applicable)
may be resumed, as the case may be. See "The
Exchange Offer--Resales of New Capital
Securities."
Consequences of Failure to Holder of Old Capital Securities who do not
Exchange.................... exchange their Old Capital Securities for New
Capital Securities pursuant to the Exchange Offer
will continue to be subject to the restrictions
on transfer of such Old Capital Securities as set
forth in the legend thereon. In general, the Old
Capital Securities may not be offered or sold,
unless registered under the Securities Act,
except pursuant to an exemption from, or in a
transaction not subject to, the Securities Act
and applicable state securities laws. The Company
does not currently anticipate that it will
register the Old Capital Securities under the
Securities Act.
Exchange Agent.............. The exchange agent with respect to the Exchange
Offer is The Chase Manhattan Bank (the "Exchange
Agent"). The addresses and telephone and
facsimile numbers of the Exchange Agent are set
forth in "The Exchange Offer--Exchange Agent" and
in the Letter of Transmittal.
Use of Proceeds............. Neither the Company nor the Trust will receive
any cash or other proceeds from the issuance of
the New Capital Securities offered hereby. See
"Use of Proceeds From Sale of Old Capital
Securities."
Certain United States
Federal Income Tax
Considerations; ERISA
Considerations.............
Holders of Old Capital Securities should review
the information set forth under "Certain United
States Federal Income Tax Considerations" and
"ERISA Considerations" prior to tendering Old
Capital Securities in the Exchange Offer.
11
<PAGE>
THE NEW CAPITAL SECURITIES
Securities Offered.......... $250,000,000 aggregate Liquidation Amount of the
Trust's 7.83% New Capital Securities which have
been registered under the Securities Act
(Liquidation Amount $1,000 per New Capital
Security). The New Capital Securities will be,
and the Old Capital Securities were, issued under
the Trust Agreement. The New Capital Securities
and any Old Capital Securities that remain
outstanding after consummation of the Exchange
Offer will constitute a single series of Capital
Securities under the Trust Agreement and,
accordingly, will vote together as a single class
for purposes of determining whether holders of
the requisite percentage in outstanding
Liquidation Amount thereof have taken certain
actions or exercised certain rights under the
Trust Agreement. See "Description of Securities--
Description of Capital Securities--General." The
forms and terms of the New Capital Securities are
identical in all material respects to the
respective forms and terms of the Old Capital
Securities, except that (i) the New Securities
have been registered under the Securities Act
and, therefore, are not subject to certain
restrictions on transfer applicable to the Old
Securities, (ii) the New Capital Securities will
not provide for any increase in the Distribution
rate thereon and (iii) the New Junior
Subordinated Debentures will not provide for any
increase in the interest rate thereon.
Distribution Dates.......... June 1 and December 1 of each year, commencing
June 1, 1998.
Extension Periods........... Distributions on Capital Securities will be
deferred for the duration of any Extension Period
elected by the Company with respect to the
payment of interest on the New Junior
Subordinated Debentures. No Extension Period will
exceed 10 consecutive semi-annual periods or
extend beyond the Stated Maturity. See
"Description of Securities--Description of Junior
Subordinated Debentures--Option to Defer Interest
Payments Period" and "Certain Federal Income Tax
Consequences--Interest Income and Original Issue
Discount."
Ranking..................... The New Capital Securities rank on a parity, and
payments thereon will be made pro rata, with the
Old Capital Securities and the Common Securities
except as described under "Description of
Securities--Description of Capital Securities--
Subordination of Common Securities." The New
Junior Subordinated Debentures will rank pari
passu with the Old Junior Subordinated Debentures
and all other Junior Subordinated Debentures to
be issued by the Company which will be issued and
sold (if at all) to other trusts to be
established by the Company (if any), and will be
unsecured and subordinate and junior in right of
payment to the extent and in the manner set forth
in the Indenture to all Senior Indebtedness (as
defined herein). Senior Indebtedness of the
Company includes existing and future senior debt,
senior subordinated debt and subordinated debt of
the Company. As of December 31, 1997, there was
approximately $423.2 million of Senior
Indebtedness of the
12
<PAGE>
Company outstanding. See "Description of
Securities--Description of Junior Subordinated
Debentures." The Guarantee constitutes an
unsecured obligation of the Company and will rank
subordinate and junior in right of payment to the
extent and in the manner set forth in the
Guarantee Agreement to all Senior Indebtedness.
See "Description of Guarantee." Additionally,
because the Company is a holding company that
conducts all of its operations through its
subsidiaries, the claims of the Property Trustee
as the holder of the Junior Subordinated
Debentures on behalf of the Trust and the claims
of the Guarantee Trustee as the holder of the
Guarantee on behalf of the Trust and the
Guarantee--will be effectively subordinated to
the claims of the creditors of the Company's
subsidiaries. As of December 31, 1997, the
Company's subsidiaries had $8.76 billion of
outstanding debt and Virginia Electric and Power
Company, the Company's largest subsidiary, had
6,890,140 outstanding shares of preferred stock
($100 per share liquidation preference).
Redemption.................. The Capital Securities are subject to mandatory
redemption (i) in whole but not in part at the
Stated Maturity upon repayment of the Junior
Subordinated Debentures, (ii) in whole but not in
part, contemporaneously with the optional
prepayment by the Company of the Junior
Subordinated Debentures upon the occurrence and
continuation of a Tax Event or an Investment
Company Event, and (iii) in whole or in part at
any time on or after December 1, 2007
contemporaneously with the optional prepayment by
the Company of the Junior Subordinated
Debentures, in each case at the applicable
Redemption Price. See "Description of
Securities--Description of Capital Securities--
Redemption."
Rating...................... The Capital Securities have been rated "BBB+" by
Standard & Poor's Ratings Services, "baa1" by
Moody's Investors Services, Inc. and "BBB" by
Fitch Investors Services, Inc. The ratings have
been obtained with the understanding that the
assigning rating organization will continue to
monitor the credit ratings of the Company and the
Trust and will make future adjustments to the
extent warranted. A security ratings is not a
recommendation to buy, sell or hold securities.
It only reflects the views of the assigning
rating organization and may be subject to
revision or withdrawal at any time by the
assigning rating organization.
Transfer Restrictions....... The New Capital Securities will be issued, and
may be transferred, only in blocks having a
Liquidation Amount of not less than $100,000 (100
New Capital Securities). See "Description of
Securities--Description of Capital Securities--
Restrictions on Transfer." Any transfer, sale or
other disposition of Capital Securities in a
block having a Liquidation Amount of less than
$100,000 shall be deemed to be void and of no
legal effect whatsoever.
13
<PAGE>
Absence of Market for the
Capital Securities.........
The New Capital Securities will be a new issue of
securities for which there currently is no
market. Although the Initial Purchasers have
advised the Company and the Trust that they
currently intend to make a market in the New
Capital Securities, the Initial Purchasers are
not obligated to do so, and any market-making
activity with respect to the New Capital
Securities may be interrupted or discountinued at
any time without notice. Accordingly, no
assurance can be given that an active public or
other market will develop for the New Capital
Securities or as to the liquidity of or the
trading market for the New Capital Securities.
The Company and the Trust currently do not intend
to apply for listing of the New Capital
Securities on any securities exchange or for
quotation through the National Association of
Securities Dealers Automated System.
For additional information regarding the New Securities, see "Description of
Securities" and "Certain Federal Income Tax Consequences."
14
<PAGE>
DOMINION RESOURCES, INC.
SELECTED FINANCIAL INFORMATION
This summary of financial information for the years 1993-1997 was taken from
and should be read along with the audited financial statements contained in our
most recent Annual Report on Form 10-K.
<TABLE>
<CAPTION>
YEARS
--------------------------------------------
1997(*) 1996 1995 1994 1993
-------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C>
Operating revenues and income
(millions)...................... $7,677.6 $4,854.0 $4,633.1 $4,491.1 $4,433.9
Operating expenses (millions).... 6,200.6 3,744.2 3,606.7 3,452.9 3,306.6
Operating income (millions)...... 1,477.0 1,109.8 1,026.4 1,038.2 1,127.3
Net income (millions)............ 399.2 472.1 425.0 478.2 516.6
Earnings per common share........ 2.15 2.65 2.45 2.81 3.12
Average common shares outstanding
(millions)...................... 185.2 178.3 173.8 170.3 165.7
</TABLE>
- --------
(*) Reflects the acquisition of East Midlands Electricity plc in early 1997 and
the effect of a one-time windfall profits tax levied on East Midlands in
the third quarter.
OTHER SELECTED DATA
<TABLE>
<CAPTION>
DECEMBER 31,
-----------------------------------------------------
1997 1996 1995 1994 1993
--------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C>
Assets (millions)....... $20,192.7 $14,896.4 $13,903.3 $13,562.2 $13,349.5
Capitalization
(millions)............. 13,270.8 10,272.6 9,914.9 9,786.3 9,474.9
Capitalization ratios
(percent):
Long-term debt and
capital lease
obligations(*)....... 54% 44% 44% 45% 44%
Preferred securities
of subsidiary
trusts............... 3% 1 1 -- --
Preferred stock....... 5% 7 7 8 9
Common equity......... 38% 48 48 47 47
--------- --------- --------- --------- ---------
100% 100% 100% 100% 100%
========= ========= ========= ========= =========
</TABLE>
- --------
(*) Excludes nonrecourse financing of nonutility subsidiaries and short-term
debt.
15
<PAGE>
RISK FACTORS
Holders tendering Old Capital Securities in the Exchange Offer should
carefully review the information contained elsewhere in this Prospectus and
should particularly consider the matters set forth below.
RANKING OF OBLIGATIONS UNDER THE GUARANTEE AND THE JUNIOR SUBORDINATED
DEBENTURES
The Company's obligations under the Junior Subordinated Debentures are
unsecured and rank subordinate and junior in right of payment to all present
and future Senior Indebtedness (as defined in the Indenture and described
under "Description of the Junior Subordinated Debentures--Subordination") of
the Company. The Company's obligations under the Guarantee are unsecured and
rank subordinate and junior in right of payment to all of the Senior
Indebtedness of the Company and pari passu with the Company's obligations
under the Junior Subordinated Debentures. At December 31, 1997, the
outstanding Senior Indebtedness of the Company was $423.2 million. Neither the
Indenture, the Guarantee nor the Trust Agreement places any limitation on the
amount of secured or unsecured debt that the Company may incur, including
through the issuance of other securities that are pari passu or senior to the
Capital Securities, the Junior Subordinated Debentures and the Guarantee. See
"Description of Guarantee--Status of the Guarantee" and "Description of Junior
Subordinated Debentures--Subordination." Because the Company is a holding
company that conducts all of its operations through its subsidiaries, the
claims of the Trust--as the holder of the Junior Subordinated Indentures and
the Guarantee--will be effectively subordinated to the claims of creditors of
the Company's subsidiaries, including trade creditors, debtholders, secured
creditors, taxing authorities, guarantee holders and any preferred
stockholders. As of December 31, 1997, the Company's subsidiaries had $8.76
billion of outstanding debt. Virginia Electric and Power Company, the
Company's largest subsidiary, had 6,890,140 outstanding shares of preferred
stock ($100 per share liquidation preference). The right of the Company to
participate in any distribution of assets of any subsidiary upon liquidation
or reorganization or otherwise (and thus the ability of holders of the Capital
Securities to benefit indirectly from such distribution) is subject to the
prior claims of creditors of that subsidiary. The Junior Subordinated
Debentures will be effectively subordinated to all existing and future
liabilities of the Company's subsidiaries, and holders of Junior subordinated
Debentures should look only to the assets of the Company for payments on the
Junior Subordinated Debentures. See "Dominion Resources, Inc."
The ability of the Trust to pay amounts due on the Capital Securities is
solely dependent upon the Company making payments on the Junior Subordinated
Debentures as and when required. The Company's ability to service its
indebtedness, including the Junior Subordinated Debentures, and to perform
under the Guarantee, is dependent upon the ability of the Company's
subsidiaries to make payments to the Company in the form of dividends and
other distributions. The payment of dividends or other distributions by the
Company's subsidiaries is dependent upon the earnings of those subsidiaries.
Earnings of the Company's subsidiaries are subject to various business and
regulatory considerations as more fully described in the Company's SEC
filings.
OPTION TO EXTEND INTEREST PAYMENT PERIOD; TAX CONSEQUENCES
So long as no Debenture Event of Default has occurred or is continuing, the
Company has the right under the Indenture to defer the payment of interest on
the Junior Subordinated Debentures at any time or from time to time for a
period not exceeding 10 consecutive semi-annual periods. During any Extension
Period, the Company has the right to make partial interest payments. No
Extension Period may extend beyond the Stated Maturity of the Junior
Subordinated Debentures. As a consequence of any such deferral, semi-annual
Distributions on the Capital Securities by the Trust will be deferred during
any Extension Period. Distributions to which holders of the Capital Securities
are entitled will accumulate additional Distributions thereon ("Additional
Distributions") equal to any Additional Interest received by the Trust in
respect of the Junior Subordinated Debentures.
During any such Extension Period, the Company may not, and may not permit
any subsidiary of the Company to (i) declare or pay any dividends or
distributions on, or redeem, purchase, acquire or make a liquidation payment
with respect to, any of the Company's capital stock or (ii) make any payment
of principal,
16
<PAGE>
interest or premium, if any, on or repay, repurchase or redeem any debt
securities of the Company (including Other Debentures) that rank pari passu
with or junior to the Junior Subordinated Debentures or make any guarantee
payments with respect to any guarantee by the Company of the debt securities
of any subsidiary of the Company (including Other Guarantees) if such
guarantee ranks pari passu with or junior to the Junior Subordinated
Debentures (other than (a) dividends or distributions in common stock of the
Company, (b) any declaration of a dividend in connection with the
implementation of a stockholders' rights plan, or the issuance of capital
stock under any such plan in the future, or the redemption or repurchase of
any such rights pursuant thereto, (c) payments under the Guarantee and (d)
purchases of common stock related to the issuance of common stock or rights
under any of the Company's benefit plans for its directors, officers,
employees, consultants or advisers). Prior to the termination of any such
Extension Period, the Company may further extend such Extension Period,
provided that such extension does not cause such Extension Period to exceed 10
consecutive semi-annual periods or to extend beyond the Stated Maturity. At
any time following the termination of any Extension Period and the payment of
all amounts then due, the Company may elect to begin a new Extension Period,
subject to the above requirements. There is no limit on the number of times
that the Company may elect to begin an Extension Period. See "Description of
Securities--Description of Capital Securities--Distributions" and "Description
of Securities--Description of Junior Subordinated Debentures--Option to Defer
Interest Payments."
If an Extension Period occurs, a holder of Capital Securities will continue
to accrue income for United States federal income tax purposes (in the form of
original issue discount) in respect of interest allowable to its pro rata
share of the Junior Subordinated Debentures held by the Trust. As a result, a
holder of Capital Securities will include such income in gross income for
United States federal income tax purposes in advance of the receipt of cash,
and will not receive the cash related to such income from the Trust if the
holder disposes of the Capital Securities prior to the record date for the
payment of Distributions. See "Certain Federal Income Tax Consequences--
Interest Income and Original Issue Discount" and "--Sales or Redemptions of
Capital Securities."
The Company has no present intention of exercising its right to defer
interest payments. However, should the Company elect to exercise such right in
the future, the market price of the Capital Securities is likely to be
affected. A holder that disposes of any Capital Securities during an Extension
Period, therefore, might not receive the same return on its investment as a
holder that continues to hold its Capital Securities. In addition, as a result
of the existence of the Company's right to defer interest payments, the market
price of the Capital Securities (which represent preferred beneficial
interests in the assets of the Trust) may be more volatile than the market
prices of other securities on which original issue discount accrues that are
not subject to such deferrals.
TAX EVENT OR INVESTMENT COMPANY EVENT REDEMPTION
Upon the occurrence and continuation of a Tax Event or an Investment Company
Event, the Company has the right to prepay the Junior Subordinated Debentures
in whole (but not in part) within 90 days of the occurrence of such Tax Event
or Investment Company Event and therefore cause a mandatory redemption of all
Capital Securities at the Event Redemption Price. See "Description of
Securities--Description of Capital Securities--Redemption."
A "Tax Event" means the receipt by the Company and the Trust of an opinion
of counsel, who shall not be an officer or employee of the Company or its
affiliates, to the effect that, as a result of any amendment to, or change
(including any announced prospective change) in, the laws (or any regulations
thereunder) of the United States or any other relevant political subdivision
or taxing authority, or as a result of any official administrative
pronouncement or judicial decision interpreting or applying such laws or
regulations, which amendment or change is effective or which pronouncement or
decision is announced on or after December 8, 1997, there is more than an
insubstantial risk that (i) the Trust is, or will be within 90 days after the
date of such opinion, subject to United States federal income tax with respect
to income received or accrued on the Junior Subordinated Debentures, (ii)
interest payable by the Company on the Junior Subordinated Debentures is not,
or within 90 days after the date of such opinion, will not be, deductible by
the Company, in whole or in part, for
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United States federal income tax purposes or (iii) the Trust is, or will be
within 90 days after the date of such opinion, subject to more than a de
minimis amount of other taxes, duties or other governmental charges.
See "--Possible Tax Law Changes Affecting the Capital Securities" for a
discussion of certain legislative proposals that, if adopted, could give rise
to a Tax Event, which may permit the Company to cause a redemption of all
Capital Securities prior to December 1, 2027.
An "Investment Company Event" means the receipt by the Trust of an opinion
of counsel experienced in such matters to the effect that, as a result of the
occurrence of a change in law or regulation or change in interpretation or
application of law or regulation by any legislative body, court, governmental
agency or regulatory authority (a "Change in 1940 Act Law"), the Trust is or
will be considered an investment company that is required to be registered
under the Investment Company Act of 1940, as amended, which Change in 1940 Act
Law becomes effective on or after December 8, 1997.
EXCHANGE OF JUNIOR SUBORDINATED DEBENTURES FOR CAPITAL SECURITIES
The Company has the right to terminate the Trust at any time and, after
satisfaction of liabilities to creditors as required by law, cause the Junior
Subordinated Debentures to be distributed to the holders of the Capital
Securities in liquidation of the Trust. The exercise of such right is subject
to the Company having received an opinion of counsel to the effect that such
distribution will not be a taxable event to holders of Capital Securities. See
"Description of Securities--Description of Capital Securities--Liquidation of
the Trust and Distribution of Junior Subordinated Debentures."
MARKET PRICES
There can be no assurance as to the market prices for Capital Securities or
Junior Subordinated Debentures that may be distributed in exchange for Capital
Securities if a liquidation of the Trust occurs. Accordingly, the Capital
Securities that an investor may purchase in this Offering or in the secondary
market, or the Junior Subordinated Debentures that a holder of Capital
Securities may receive in liquidation of the Trust, may trade at a discount
from the price that the investor paid to purchase the Capital Securities.
Because holders of Capital Securities may receive Junior Subordinated
Debentures on termination of the Trust and because Distributions are otherwise
limited to payments on the Junior Subordinated Debentures, prospective
purchasers of New Capital Securities are also making an investment decision
with regard to the Junior Subordinated Debentures and should carefully review
all the information relating the Junior Subordinated Debentures contained in
this Prospectus. See "Description of the Junior Subordinated Debentures."
RIGHTS UNDER THE GUARANTEE
The Chase Manhattan Bank acts as the Guarantee Trustee and will hold the New
Guarantee for the benefit of the holders of all Capital Securities. The Chase
Manhattan Bank also acts as Debenture Trustee for the Junior Subordinated
Debentures and as Property Trustee under the Trust Agreement and its affiliate
Chase Manhattan Bank Delaware acts as Delaware Trustee under the Trust
Agreement. The Guarantee guarantees to the holders of the Capital Securities
the following payments, to the extent not paid by the Trust: (i) any
accumulated and unpaid Distributions required to be paid on the Capital
Securities, to the extent the Trust has funds legally available therefor at
such time, (ii) the redemption price with respect to Capital Securities called
for redemption, to the extent the Trust has funds available therefor at such
time and (iii) upon a voluntary or involuntary termination, dissolution,
winding-up or liquidation of the Trust (unless the Junior Subordinated
Debentures are distributed to holders of the Capital Securities), the lesser
of (a) the aggregate of the Liquidation Amount and accumulated and unpaid
Distributions on the Capital Securities to the date of payment, to the extent
the Trust has funds on hand available therefor at such time, and (b) the
amount of assets of the Trust remaining available for distribution to holders
of the Capital Securities.
The holders of a majority in aggregate Liquidation Amount of the Capital
Securities have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Guarantee Trustee in
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respect of the Guarantee or to direct the exercise of any trust or power
conferred upon the Guarantee Trustee under the Guarantee. Any holder of the
Capital Securities may institute a legal proceeding directly against the
Company to enforce its rights under the Guarantee without first instituting a
legal proceeding against the Trust, the Guarantee Trustee or any other person
or entity. If the Company were to default on its obligation to pay amounts
payable under the Junior Subordinated Debentures, the Trust would lack funds
for the payment of Distributions or amounts payable on redemption of the
Capital Securities or otherwise, and, in such event, holders of the Capital
Securities would not be able to rely upon the Guarantee for payment of such
amounts. Instead, in the event a Debenture Event of Default shall have
occurred and continues due to the Company's failure to pay interest on or
principal of the Junior Subordinated Debentures when such payment is due and
payable (thereby preventing the Trust from making Distributions, then a holder
of Capital Securities may institute a suit directly against the Company for
enforcement of payment to such holder of the principal of or interest on such
Junior Subordinated Debentures having a principal amount equal to the
aggregate Liquidation Amount of the Capital Securities of such holder (a
"Direct Action"). Notwithstanding any payments made to a holder of Capital
Securities by the Company in connection with a Direct Action, the Company
shall remain obligated to pay the principal of and interest on the Junior
Subordinated Debentures, and the Company shall be subrogated to the rights of
the holder of such Capital Securities with respect to payments on the Capital
Securities to the extent of any payments made by the Company to such holder in
any Direct Action. Except as described under the Indenture and the Trust
Agreement, and as described in this Prospectus, holders of Capital Securities
will not be able to exercise directly any other remedy available to the
holders of the Junior Subordinated Debentures or assert directly any other
rights in respect of the Junior Subordinated Debentures. See "Description of
Securities--Description of Junior Subordinated Debentures--Enforcement of
Certain Rights by Holders of Capital Securities," "Description of Securities--
Description of Junior Subordinated Debentures--Debenture Events of Default"
and "Description of Securities--Description of Guarantee." The Trust Agreement
provides that each holder of Capital Securities by acceptance thereof agrees
to the provisions of the Guarantee Agreement and the Indenture.
LIMITED VOTING RIGHTS
Holders of Capital Securities will generally have limited voting rights
relating only to the modification of the Capital Securities and the exercise
of the Trust's rights as holder of Junior Subordinated Debentures. Holders of
Capital Securities will have limited authority to vote to appoint, remove or
replace the Property Trustee or the Delaware Trustee. The Issuer Trustees and
the Company may amend the Trust Agreement without the consent of holders of
Capital Securities to ensure that the Trust will be classified for United
States federal income tax purposes as a grantor trust even if such action
adversely affects the interests of such holders. See "Description of Capital
Securities--Voting Rights; Amendment of the Trust Agreement" and "Description
of Securities--Description of Capital Securities--Removal of Issuer Trustees;
Appointment of Successors."
TRADING PRICE TAX CONSEQUENCES
The Capital Securities may trade at a price that does not fully reflect the
value of accrued but unpaid interest with respect to the underlying Junior
Subordinated Debentures. A holder which uses the accrual method of accounting
for tax purposes (and a cash method holder, if the Junior Subordinated
Debentures are deemed to have been issued with OID) and who disposes of its
Capital Securities between record dates for payments of distributions will be
required to include accrued but unpaid interest on the Junior Subordinated
Debentures through the date of disposition in income as ordinary income (i.e.,
interest or, possibly, OID), and to add such amount to its adjusted tax basis
in its share of the underlying Junior Subordinated Debentures deemed disposed
of. To the extent the selling price is less than the holder's adjusted tax
basis (which will include all accrued but unpaid interest), a holder will
recognize a capital loss. Subject to certain limited exceptions, capital
losses cannot be applied to offset ordinary income for United States federal
income tax purposes. See "Certain Federal Income Tax Consequences--Interest
Income and Original Issue Discount" and "--Sales of Capital Securities."
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CONSEQUENCES OF A FAILURE TO EXCHANGE OLD CAPITAL SECURITIES
The Old Capital Securities have not been registered under the Securities Act
or any state securities laws and, therefore, may not be offered, sold or
otherwise transferred except in compliance with the registration requirements
of the Securities Act and any other applicable securities laws, or pursuant to
an exemption therefrom or in a transaction not subject thereto, and in each
case in compliance with certain other conditions and restrictions. Old Capital
Securities which remain outstanding after consummation of the Exchange Offer
will continue to bear a legend reflecting such restrictions on transfer. In
addition, upon consummation of the Exchange Offer, holders of Old Capital
Securities which remain outstanding will not be entitled to any rights to have
such Old Capital Securities registered under the Securities Act or to any
similar rights under the Registration Rights Agreement (subject to certain
limited exceptions). The Company and the Trust do not intend to register under
the Securities Act any Old Capital Securities which remain outstanding after
consummation of the Exchange Offer (subject to such limited exceptions, if
applicable).
To the extent that Old Capital Securities are tendered and accepted in the
Exchange Offer, a holder's ability to sell untendered Old Capital Securities
could be adversely affected. In addition, although the Old Capital Securities
have been designated for trading in the Private Offerings, Resale and Trading
through Automatic Linkages ("PORTAL") market, to the extent that Old Capital
Securities are tendered and accepted in connection with the Exchange Offer,
any trading market for Old Capital Securities which remain outstanding after
the Exchange Offer could be adversely affected.
The New Capital Securities and any Old Capital Securities which remain
outstanding after consummation of the Exchange Offer will constitute a single
series of Capital Securities under the Trust Agreement and, accordingly, will
vote together as a single class for purposes of determining whether holders of
the requisite percentage in outstanding Liquidation Amount thereof have taken
certain actions or exercised certain rights under the Trust Agreement.
The Old Capital Securities provide that, if a registration statement
relating to the Exchange Offer has not been filed on or by May 7, 1998 and
declared effective on or by June 6, 1998 the Distribution rate borne by the
Old Capital Securities will increase by 0.25% per annum commencing on June ,
1998, until the Exchange Offer is consummated. See "Description of Old Capital
Securities." Following consummation of the Exchange Offer, neither the Old
Capital Securities nor the New Capital Securities will be entitled to any
increase in the Distribution rate thereon.
ABSENCE OF PUBLIC MARKET
The Old Capital Securities were issued to, and the Company believes are
currently owned by, a relatively small number of beneficial owners. The Old
Capital Securities have not been registered under the Securities Act and will
continue to be subject to restrictions on transferability to the extent that
they are not exchanged for New Capital Securities. Although the New Capital
Securities will generally be permitted to be resold or otherwise transferred
by the holders (who are not affiliates of the Company or the Trust) without
compliance with the registration requirements under the Securities Act, they
will constitute a new issue of securities with no established trading market.
Capital Securities may be transferred by the holders thereof only in blocks
having a Liquidation Amount of not less than $100,000 (100 Capital
Securities). There is no existing market for the Capital Securities and there
can be no assurance as to (i) the liquidity of any markets that may
development for the Capital Securities and, any issued New Capital Securities,
(ii) the ability of the holders to sell their Capital Securities and any
issued New Capital Securities, or (iii) at what price holders of the Capital
Securities and any issued New Capital Securities will be able to sell their
respective securities. If an active public market does not develop, the market
price and liquidity of the New Capital Securities may be adversely affected.
If a public trading market develops for the New Capital Securities, future
trading prices of such securities will depend on many factors, including,
among other things, prevailing interest rates, results of operations and
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the market for similar securities. Depending on prevailing interest rates, the
market for similar securities and other factors, including the financial
condition of the Company, the New Capital Securities may trade at a discount
from their issue price.
Notwithstanding the registration of the New Capital Securities in the
Exchange Offer, holders who are "affiliates" (as defined under Rule 405 of the
Securities Act) of the Company or the Trust may publicly offer for sale or
resell the New Capital Securities only in compliance with the provisions of
Rule 144 under the Securities Act.
Each broker-dealer that receives New Capital Securities for its own account
in exchange for Old Capital Securities, where such Old Capital Securities were
acquired by such broker-dealer as a result of market-making activities or
other trading activities, must acknowledge that it will deliver a prospectus
in connection with any resale of such New Capital Securities. See "Plan of
Distribution."
EXCHANGE OFFER PROCEDURES
Subject to the conditions set forth under "The Exchange Offer--Conditions of
the Exchange Offer," delivery of New Capital Securities in exchange for Old
Capital Securities tendered and accepted for exchange pursuant to the Exchange
Offer will be made only after timely receipt by the Exchange Agent of (i)
certificates for Old Capital Securities or a book-entry confirmation of a
book-entry transfer of Old Capital Securities into the Exchange Agent's
account at DTC, including an Agent's Message (as defined under "The Exchange
Offer--Acceptance for Exchange and Issuance of New Capital Securities") if the
tendering holder does not deliver a Letter of Transmittal, (ii) a completed
and signed Letter of Transmittal (or facsimile thereof), with any required
signature guarantees, or, in the case of a book-entry transfer, an Agent's
Message in lieu of the Letter of Transmittal, and (iii) any other documents
required by the Letter of Transmittal. Therefore, holders of Old Capital
Securities desiring to tender such Old Capital Securities in exchange for New
Capital Securities should allow sufficient time to ensure timely delivery.
Neither the Company nor the Trust is under a duty to give notification of
defects or irregularities with respect to the tenders of Old Capital
Securities for exchange.
POSSIBLE TAX LAW CHANGES AFFECTING THE CAPITAL SECURITIES
Under current law, the Company will be able to deduct interest on the Junior
Subordinated Debentures and stated interest will be taxable to a United States
Person as ordinary income at the time paid or accrued. However, on February 6,
1997, as part of the Clinton Administration's Fiscal 1998 Budget Proposal, the
Treasury Department proposed legislation (the "Clinton Proposal") which would
have, among other things, generally denied corporate issuers a federal income
tax deduction for interest in respect of debt obligations, such as the Junior
Subordinated Debentures, issued on or after the date of "first committee
action" with respect the Clinton Proposal (i) if such debt obligations had a
maximum term in excess of 15 years and were not shown as indebtedness on the
issuer's applicable consolidated balance sheet or (ii) if such debt
obligations had a maximum weighted average maturity of more than 40 years. The
Clinton Proposal was not enacted and, under current law, the Company is able
to deduct interest on the Junior Subordinated Debentures. There can be no
assurance, however, that legislation similar to the Clinton Proposal or future
legislative proposals, future regulations or official administrative
pronouncements, or future judicial decisions will not affect the ability of
the Company to deduct interest on the Junior Subordinated Debentures. Such a
change could give rise to a Tax Event, which
may permit the Company to cause a redemption of the Capital Securities before,
as well as after, December 1, 2007. See "Description of Capital Securities--
Redemption" and "Certain Federal Income Tax Consequences--Possible Tax Law
Changes."
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DOMINION RESOURCES, INC.
RATIO OF EARNINGS TO FIXED CHARGES
The ratio of earnings to fixed charges for each of the periods indicated is
as follows:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-------------------------
1997* 1996 1995 1994 1993
----- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges.............. 1.97 2.71 2.55 2.77 2.92
</TABLE>
- --------
(*) Net income for the twelve months ended December 31, 1997 includes the one
time charge of $156.6 million for the windfall profits tax levied by the
United Kingdom government. Excluding this charge from the calculation
above results in a ratio of earnings to fixed charges for the twelve
months ended December 31, 1997 of 2.24x.
These computations include the Company and its subsidiaries, and 50% or less
equity companies. For these ratios, "earnings" is determined by adding "total
fixed charges" (excluding interest capitalized), income taxes, minority common
stockholders equity in net income and amortization of interest capitalized to
income from continuing operations after eliminating equity in undistributed
earnings and adding back losses of companies in which at least 20% but less
than 50% equity is owned. For this purpose, "total fixed charges" consists of
(1) interest on all indebtedness and amortization of debt discount and
expense, (2) interest capitalized and (3) an interest factor attributable to
rentals.
USE OF PROCEEDS FROM THE SALE OF THE OLD CAPITAL SECURITIES
Neither the Company nor the Trust will receive any cash or other proceeds
from the issuance of the New Capital Securities offered hereby. In
consideration for issuing the New Capital Securities in exchange for Old
Capital Securities as described in this Prospectus, the Trust will receive Old
Capital Securities in like Liquidation Amount. The Old Capital Securities
surrendered in exchange for the New Capital Securities will be retired and
canceled.
The proceeds to the Trust from the offering of the Old Capital Securities
(without giving effect to expenses payable by the Company) were $250,000,000.
All of the proceeds from the sale of the Old Capital Securities were invested
by the Trust in the Junior Subordinated Debentures. The Company used the net
proceeds from the sale of the Junior Subordinated Debentures for general
corporate purposes including the repayment of debt.
DOMINION RESOURCES CAPITAL TRUST I
Dominion Resources Capital Trust I is a statutory business trust, created
under Delaware law pursuant to the filing of a certificate of trust with the
Delaware Secretary of State, which is governed by the Trust Agreement. The
Trust exists for the exclusive purposes of (i) issuing and selling the Trust
Securities and New Capital Securities, (ii) using the proceeds from the sale
of Common Securities and the Old Capital Securities to acquire the Old Junior
Subordinated Debentures issued by the Company, (iii) making Distributions,
(iv) exchanging the Old Junior Subordinated Debentures for New Junior
Subordinated Debentures in the Exchange Offer pursuant to the Indenture and
(v) engaging in only those other activities necessary, advisable or incidental
thereto (such as registering the transfer of Capital Securities). Accordingly,
the Junior Subordinated Debentures are the sole assets of the Trust and
payments by the Company under the Junior Subordinated Debentures and the
Expense Agreement will be the sole revenue of the Trust. All of the Common
Securities are owned by the Company. The Common Securities rank pari passu,
and payments are made thereon pro rata, with the Capital Securities except
that upon the occurrence and continuance of an event of default under the
Trust Agreement resulting from a Debenture Event of Default, the rights of the
Company as holder of the Common Securities to payment in respect of
Distributions and payments upon liquidation, redemption or otherwise will be
subordinated to the rights of the
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holders of the Capital Securities. See "Description of Securities--Description
of Capital Securities--Subordination of Common Securities." The Company owns
Common Securities in an aggregate liquidation amount equal to 3% of the
outstanding Capital Securities.
The Trust has a term of approximately 31 years, but may terminate earlier as
provided in the Trust Agreement. The Trust's business and affairs are
conducted by its trustees, each appointed by the Company as holder of the
Common Securities. Under the Trust Agreement, the trustees for the Trust are
The Chase Manhattan Bank, as the Property Trustee, Chase Manhattan Bank
Delaware, as the Delaware Trustee, and two Administrative Trustees who are
officers of the Company or an Affiliate. The Chase Manhattan Bank also acts as
trustee under the Indenture and the Old Guarantee Agreement and will act as
trustee under the New Guarantee Agreement. See "Description of Securities--
Description of Guarantee" and "Description of Securities--Description of
Junior Subordinated Debentures." The holder of the Common Securities of the
Trust, or the holders of a majority in Liquidation Amount of Capital
Securities if a Debenture Event of Default has occurred under the Trust
Agreement and is continuing, are entitled to appoint, remove or replace the
Property Trustee and/or the Delaware Trustee. In no event do the holders of
the Capital Securities have the right to vote to appoint, remove or replace
the Administrative Trustees; such voting rights are vested exclusively in the
holder of the Common Securities. The duties and obligations of each Issuer
Trustee are governed by the Trust Agreement. The Company pays all fees and
expenses related to the Trust, the offering of the Old Capital Securities and
this Exchange Offer and will pay, directly or indirectly, all ongoing costs,
expenses and liabilities of the Trust.
Pursuant to the Expense Agreement, the Company has irrevocably and
unconditionally guaranteed to each person or entity to whom the Trust becomes
indebted or liable, the full payment of any costs, expenses or liabilities of
the Trust, other than obligations of the Trust to pay to the holders of any
Capital Securities or the amounts due such holders pursuant to the terms of
the Capital Securities. The principal executive office of the Trust is c/o
Dominion Resources, Inc. 901 E. Byrd Street-Suite 1700, Richmond VA 23219-
6111.
DOMINION RESOURCES, INC.
Dominion Resources, Inc. is a holding company headquartered in Richmond,
Virginia. Its principal operating subsidiaries are:
. Virginia Electric and Power Company, principally an electric utility
serving two million residences and businesses in a 30,000-square-mile
region from northern Virginia to northeastern North Carolina. It owns
and operates nuclear, coal, natural gas, oil and hydroelectric power
stations;
. Dominion Energy, Inc., an independent power and natural gas subsidiary.
It has ownership and operating interests in 28 generating facilities in
six U.S. states, Argentina, Belize, Bolivia and Peru. This company has
about 649 billion cubic feet of proven natural gas reserves throughout
several major regions of the United States and Western Canada;
. Dominion Capital, Inc., a financial services and real estate subsidiary,
with commercial, mortgage and consumer lending entities, a full-service
commercial real estate company, 50% limited partnership interest in a
hydroelectric station in Louisiana, and a variety of debt and equity
investments; and
. East Midlands Electricity plc, principally an electric power
distribution and supply company serving 2.3 million homes and businesses
in the East Midlands region of the United Kingdom.
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ACCOUNTING TREATMENT FOR THE TRUST
For financial reporting purposes, the Trust is treated as a subsidiary of
the Company and, accordingly, the accounts of the Trust are included in the
consolidated financial statements of the Company. The Capital Securities will
be presented as a separate line item in the consolidated balance sheet of the
Company and appropriate disclosures about the Capital Securities, the
Guarantee and the Junior Subordinated Debentures will be included in the notes
to the consolidated financial statements. For financial reporting purposes,
the Company will record Distributions payable on the Capital Securities as a
charge in the consolidated statement of income.
THE EXCHANGE OFFER
PURPOSE AND EFFECT OF THE EXCHANGE OFFER
In connection with the sale of the Old Capital Securities, the Company and
the Trust entered into the Registration Rights Agreements with the Initial
Purchasers, pursuant to which the Company and the Trust agreed to file and to
use their reasonable best efforts to cause to become effective with the
Commission a registration statement with respect to the exchange of the Old
Capital Securities for capital securities with terms identical in all material
respects to the terms of the Old Capital Securities. A copy of the
Registration Rights Agreement has been filed as an Exhibit to the Registration
Statement of which this Prospectus is a part.
The Exchange Offer is being made to satisfy the contractual obligations of
the Company and the Trust under the Registration Rights Agreement. The forms
and terms of the New Capital Securities are identical in all material respect
to the forms and terms of the Old Capital Securities, except that the New
Capital Securities have been registered under the Securities Act and therefore
will not be subject to certain restrictions on transfer applicable to the Old
Capital Securities and will not provide for any increase in the Distribution
rate thereon. In that regard, the Old Capital Securities provide, among other
things, that, if a registration statement relating to the Exchange Offer has
not been filed on or by May 7, 1998 and declared effective on or by June 6,
1998 the Distribution rate borne by the Old Capital Securities commencing on
June , 1998, will increase by 0.25% per annum until the Exchange Offer is
consummated. Upon consummation of the Exchange Offer, holders of Old Capital
Securities will not be entitled to any increase in the Distribution rate
thereon or any further registration rights under the Registration Rights
Agreement, except under limited circumstances. See "Risk Factors--Consequences
of a Failure to Exchange Old Capital Securities" and "Description of Old
Capital Securities."
The Exchange Offer is not being made to, nor will the Trust or the Company
accept tenders for exchange from, holders of Old Capital Securities in any
jurisdiction in which the Exchange Offer or the acceptance thereof would not
be in compliance with the securities or blue sky laws of such jurisdiction.
Unless the context requires otherwise, the term "holder" with respect to the
Exchange Offer means any person in whose name the Old Capital Securities are
registered on the books of the Trust or any other person who has obtained a
properly completed bond power from the registered holder, or any person who
beneficially owns Old Capital Securities which are held of record by DTC who
desires to deliver such Old Capital Securities by book-entry transfer into the
Exchange Agent's account at DTC, or any person who beneficially owns Old
Capital Securities which are held of record by a nominee other than DTC (or
its nominee).
Pursuant to the Exchange Offer, the Company will exchange as soon as
practicable after the date hereof, the Old Guarantee for the New Guarantee and
all of the Old Junior Subordinated Debentures, of which $257,732,000 aggregate
principal amount is outstanding, for a like aggregate principal amount of the
New Junior Subordinated Debentures. The New Guarantee and New Junior
Subordinated Debentures have been registered under the Securities Act.
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<PAGE>
TERMS OF THE EXCHANGE OFFER
The Trust hereby offers, upon the terms and subject to the conditions set
forth in this Prospectus and in the accompanying Letter of Transmittal, to
exchange up to $250,000,000 aggregate Liquidation Amount of New Capital
Securities for a like aggregate Liquidation Amount of Old Capital Securities
properly tendered on or prior to the Expiration Date and not properly
withdrawn in accordance with the procedures described below. The Trust will
issue, promptly after the Expiration Date, an aggregate Liquidation Amount of
up to $250,000,000 of New Capital Securities in exchange for a like aggregate
Liquidation Amount of outstanding Old Capital Securities tendered and accepted
in connection with the Exchange Offer. Holders may tender their Old Capital
Securities for exchange in whole or in part having a Liquidation Amount of not
less than $100,000 (100 Old Capital Securities) or any integral multiple of
$1,000 (one Old Capital Security) in excess thereof.
The Exchange Offer is not conditioned upon any minimum Liquidation Amount of
Old Capital Securities being tendered. As of the date of this Prospectus,
$250,000,000 aggregate Liquidation Amount of Old Capital Securities is
outstanding.
Holders of Old Capital Securities do not have any appraisal or dissenters'
rights in connection with the Exchange Offer. Old Capital Securities which are
not tendered for or are tendered but not accepted in connection with the
Exchange Offer will remain outstanding and remain entitled to the benefits of
the Trust Agreement, but will not be entitled to any further registration
rights under the Registration Rights Agreement, except under limited
circumstances. See "Risk Factors--Consequences of a Failure to Exchange Old
Capital Securities" and "Description of Old Securities."
If any tendered Old Capital Securities are not accepted for exchange because
of an invalid tender, the occurrence of certain other events set forth herein
or otherwise, certificates for any such unaccepted Old Capital Securities will
be returned, without expense, to the tendering holder thereof promptly after
the Expiration Date.
Holders who tender Old Capital Securities in connection with the Exchange
Offer will not be required to pay brokerage commissions or fees or transfer
taxes with respect to the exchange of Old Capital Securities in connection
with the Exchange Offer, except under those circumstances described in the
Letter of Transmittal. The Company will pay all charges and expenses, other
than certain applicable taxes described below, in connection with the Exchange
Offer. See "--Fees and Expenses."
NEITHER THE BOARD OF DIRECTORS OF THE COMPANY NOR THE TRUSTEES OF THE TRUST
MAKES ANY RECOMMENDATION TO HOLDERS OF OLD CAPITAL SECURITIES AS TO WHETHER TO
TENDER OR REFRAIN FROM TENDERING ALL OR ANY PORTION OF THEIR OLD CAPITAL
SECURITIES PURSUANT TO THE EXCHANGE OFFER. IN ADDITION, NO ONE HAS BEEN
AUTHORIZED TO MAKE ANY SUCH RECOMMENDATION. HOLDERS OF OLD CAPITAL SECURITIES
MUST MAKE THEIR OWN DECISION WHETHER TO TENDER PURSUANT TO THE EXCHANGE OFFER
AND, IF SO, THE AGGREGATE LIQUIDATION AMOUNT OF OLD CAPITAL SECURITIES TO
TENDER AFTER READING THIS PROSPECTUS AND THE LETTER OF TRANSMITTAL AND
CONSULTING WITH THEIR ADVISERS, IF ANY, BASED ON THEIR OWN FINANCIAL POSITION
AND REQUIREMENTS.
EXPIRATION DATE; EXTENSIONS; AMENDMENTS
The term "Expiration Date" means 5:00 p.m., New York City time, on , 1998
unless the Exchange Offer is extended by the Company and the Trust (in which
case the term "Expiration Date" shall mean the latest date and time to which
the Exchange Offer is extended).
The Company and the Trust expressly reserve the right in their sole and
absolute discretion, subject to applicable law, at any time and from time to
time, (i) to delay the acceptance of the Old Capital Securities for exchange,
(ii) to terminate the Exchange Offer (whether or not any Old Capital
Securities have been accepted for exchange) if the Company or the Trust
determines, in its sole and absolute discretion, that any of the
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<PAGE>
conditions referred to under "--Conditions to the Exchange Offer" has occurred
or exist or has not been satisfied, (iii) to extend the Expiration Date and
retain all Old Capital Securities tendered pursuant to the Exchange Offer,
subject, however, to the right of holders of Old Capital Securities to
withdraw their tendered Old Capital Securities as described under "--
Withdrawal Rights," and (iv) to waive any condition or otherwise amend the
terms of the Exchange Offer in any respect. If the Exchange Offer is amended
in a manner determined by the Company and the Trust to constitute a material
change, or if the Company and the Trust waive a material condition of the
Exchange Offer, the Company and the Trust will promptly disclose such
amendment by means of a prospectus supplement that will be distributed to the
registered holders of the Old Capital Securities, and the Company and the
Trust will extend the Exchange Offer to the extent required by Rule 14e-1
under the Exchange Act.
Any such delay in acceptance, extension, termination or amendment will be
followed promptly by oral (promptly confirmed in writing) or written notice
thereof to the Exchange Agent and by making a public announcement thereof, and
such announcement in the case of an extension will be made no later than 9:00
a.m., New York City time, on the next business day after the previously
scheduled Expiration Date. Without limiting the manner in which the Company
and the Trust may choose to make any public announcement and subject to
applicable law, the Company and the Trust shall have no obligation to publish,
advertise or otherwise communicate any such public announcement other than by
issuing a release to an appropriate news agency.
ACCEPTANCE FOR EXCHANGE AND ISSUANCE OF NEW CAPITAL SECURITIES
Upon the terms and subject to the conditions of the Exchange Offer, the
Trust will exchange New Capital Securities for Old Capital Securities validly
tendered and not withdrawn (pursuant to the withdrawal rights described under
"--Withdrawal Rights") promptly after the Expiration Date.
Subject to the conditions set forth under "--Conditions to the Exchange
Offer," delivery of New Capital Securities in exchange for Old Capital
Securities tendered and accepted for exchange pursuant to the Exchange Offer
will be made only after timely receipt by the Exchange Agent of (i)
certificates for Old Capital Securities or a book-entry confirmation of a
book-entry transfer of Old Capital Securities into the Exchange Agent's
account at DTC, including an Agent's Message if the tendering holder does not
deliver a Letter of Transmittal, (ii) a completed and signed Letter of
Transmittal (or facsimile thereof), with any required signature guarantees,
or, in the case of a book-entry transfer, an Agent's Message in lieu of the
Letter of Transmittal, and (iii) any other documents required by the Letter of
Transmittal. Accordingly, the delivery of New Capital Securities might not be
made to all tendering holders at the same time, and will depend upon when
certificates for Old Capital Securities, book-entry confirmations with respect
to Old Capital Securities and other required documents are received by the
Exchange Agent.
The term "book-entry confirmation" means a timely confirmation of a book-
entry transfer of Old Capital Securities into the Exchange Agent's account at
DTC. See "--Procedures for Tendering Old Capital Securities--Book-Entry
Transfer." The term "Agent's Message" means a message, transmitted by DTC to
and received by the Exchange Agent and forming a part of a book-entry
confirmation, which states that DTC has received an express acknowledgment
from the tendering participant, which acknowledgment states that such
participant has received and agrees to be bound by the Letter of Transmittal
and that the Trust and the Company may enforce such Letter of Transmittal
against such participant.
Subject to the terms and conditions of the Exchange Offer, the Company and
the Trust will be deemed to have accepted for exchange, and thereby exchanged,
Old Capital Securities validly tendered and not withdrawn as, if and when the
Trust gives oral (promptly confirmed in writing) or written notice to the
Exchange Agent of the Company's and the Trust's acceptance of such Old Capital
Securities for exchange pursuant to the Exchange Offer. The Exchange Agent
will act as agent for the Company and the Trust for the purpose of receiving
tenders of Old Capital Securities, Letters of Transmittal and related
documents, and as agent for tendering holders for the purpose of receiving Old
Capital Securities, Letters of Transmittal and related documents and
transmitting New Capital Securities which will not be held in global form by
DTC or a nominee of DTC to validly tendering
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holders. Such exchange will be made promptly after the Expiration Date. If for
any reason whatsoever, acceptance for exchange or the exchange of any Old
Capital Securities tendered pursuant to the Exchange Offer is delayed (whether
before or after the Company's and the Trust's acceptance for exchange of Old
Capital Securities) or the Company and the Trust extend the Exchange Offer or
are unable to accept for exchange or exchange Old Capital Securities tendered
pursuant to the Exchange Offer, then, without prejudice to the Company's and
the Trust's rights set forth herein, the Exchange Agent may, nevertheless, on
behalf of the Company and the Trust and subject to Rule 14e-1(c) under the
Exchange Act, retain tendered Old Capital Securities and such Old Capital
Securities may not be withdrawn except to the extent tendering holders are
entitled to withdrawal rights as described under "--Withdrawal Rights."
Pursuant to an Agent's Message or a Letter of Transmittal, a holder of Old
Capital Securities will represent, warrant and agree in the Agent's Message or
Letter of Transmittal that it has full power and authority to tender,
exchange, sell, assign and transfer Old Capital Securities, that the Trust
will acquire good, marketable and unencumbered title to the tendered Old
Capital Securities, free and clear of all liens, restrictions, charges and
encumbrances, and the Old Capital Securities tendered for exchange are not
subject to any adverse claims or proxies. The holder also will warrant and
agree that it will, upon request, execute and deliver any additional documents
deemed by the Trust or the Exchange Agent to be necessary or desirable to
complete the exchange, sale, assignment, and transfer of the Old Capital
Securities tendered pursuant to the Exchange Offer.
PROCEDURES FOR TENDERING OLD CAPITAL SECURITIES
Valid Tender. Except as set forth below, in order for Old Capital Securities
to be validly tendered by book-entry transfer, an Agent's Message must be
transmitted by DTC to the Exchange Agent or a completed and signed Letter of
Transmittal (or facsimile thereof), with any required signature guarantees,
and in either case any other documents required by the Letter of Transmittal,
must be delivered to the Exchange Agent by mail, facsimile, hand delivery or
overnight carrier at one of the Exchange Agent's addresses set forth under "--
Exchange Agent" on or prior to the Expiration Date and either (i) such Old
Capital Securities must be tendered pursuant to the procedures for book-entry
transfer set forth below or (ii) the guaranteed delivery procedures set forth
below must be complied with.
Except as set forth below, in order for Old Capital Securities to be validly
tendered by a means other than by book-entry transfer, a completed and signed
Letter of Transmittal (or facsimile thereof), with any required signature
guarantees, and any other documents required by the Letter of Transmittal,
must be delivered to the Exchange Agent by mail, facsimile, hand delivery or
overnight carrier at one of the Exchange Agent's addresses set forth under "--
Exchange Agent" on or prior to the Expiration Date and either (i) such Old
Capital Securities must be delivered to the Exchange Agent on or prior to the
Expiration Date or (ii) the guaranteed delivery procedures set forth below
must be complied with.
If less than all Old Capital Securities are tendered, a tendering holder
should fill in the amount of Old Capital Securities being tendered in the
appropriate box on the Letter of Transmittal. The entire amount of Old Capital
Securities delivered to the Exchange Agent will be deemed to have been
tendered unless otherwise indicated.
THE METHOD OF DELIVERY OF CERTIFICATES, THE LETTER OF TRANSMITTAL AND ALL
OTHER REQUIRED DOCUMENTS IS AT THE OPTION AND SOLE RISK OF THE TENDERING
HOLDER, AND DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED BY THE
EXCHANGE AGENT. IF DELIVERY IS TO BE BY MAIL, THE USE OF REGISTERED MAIL,
RETURN RECEIPT REQUESTED, PROPERLY INSURED, OR AN OVERNIGHT DELIVERY SERVICE
IS RECOMMENDED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE
TIMELY DELIVERY.
Book-Entry Transfer. The Exchange Agent and DTC have confirmed that any
Participant (as defined in "Description of Securities--Description of Capital
Securities--Form, Denomination, Book-Entry Procedures
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and Transfer--Depositary Procedures") in DTC's book-entry transfer facility
system may utilize DTC's ATOP procedures to tender Old Capital Securities. The
Exchange Agent will establish an account with respect to the Old Capital
Securities at DTC for purposes of the Exchange Offer within two business days
after the date of this Prospectus. Any Participant may make a book-entry
delivery of the Old Capital Securities by causing DTC to transfer such Old
Capital Securities into the Exchange Agent's account at DTC in accordance with
DTC's ATOP procedures for transfer. However, although delivery of Old Capital
Securities may be effected through book-entry transfer into the Exchange
Agent's account at DTC, an Agent's Message or a completed and signed Letter of
Transmittal (or facsimile thereof), with any required signature guarantees and
any other documents required by the Letter of Transmittal, must in any case be
delivered to and received by the Exchange Agent at one of its addresses set
forth under "--Exchange Agent" on or prior to the Expiration Date, or the
guaranteed delivery procedure set forth below must be complied with.
DELIVERY OF DOCUMENTS TO DTC IN ACCORDANCE WITH DTC'S PROCEDURES DOES NOT
CONSTITUTE DELIVERY TO THE EXCHANGE AGENT.
Signature Guarantees. Certificates for Old Capital Securities need not be
endorsed and signature guarantees on a Letter of Transmittal are unnecessary
unless (a) a certificate for the Old Capital Securities is registered in a
name other than that of the person surrendering the certificate or (b) such
registered holder completes the box entitled "Special Issuance Instructions"
or "Special Delivery Instructions" in the Letter of Transmittal. In the case
of (a) or (b) above, such certificates for Old Capital Securities must be duly
endorsed or accompanied by a properly executed bond power, with the
endorsement or signature on the bond power and on the Letter of Transmittal
guaranteed by a firm or other entity identified in Rule 17Ad-15 under the
Exchange Act as an "eligible guarantor institution," including (as such terms
are defined therein): (i) a bank; (ii) a broker, dealer, municipal securities
broker or dealer or government securities broker or dealer; (iii) a credit
union; (iv) a national securities exchange, registered securities association
or clearing agency; or (v) a savings association that is a participant in a
Securities Transfer Association (an "Eligible Institution"), unless
surrendered on behalf of such Eligible Institution. See Instructions 4 and 7
to the Letter of Transmittal.
Guaranteed Delivery. If a holder desires to tender Old Capital Securities
pursuant to the Exchange Offer and the certificates for such Old Capital
Securities are not immediately available or time will not permit all required
documents to reach the Exchange Agent on or before the Expiration Date, or the
procedures for book-entry transfer cannot be completed on a timely basis, such
Old Capital Securities may nevertheless be tendered, provided that all of the
following guaranteed delivery procedures are complied with:
(i) such tenders are made by or through an Eligible Institution;
(ii) a completed and signed Notice of Guaranteed Delivery, substantially
in the form accompanying the Letter of Transmittal, is delivered to the
Exchange Agent, as provided below, on or prior to Expiration Date; and
(iii) the certificates (or a book-entry confirmation) representing all
tendered Old Capital Securities, in proper form for transfer, together with
a completed and signed Letter of Transmittal (or facsimile thereof) or, in
the case of a book-entry transfer, an Agent's Message in lieu of the Letter
of Transmittal, with any required signature guarantees and any other
documents required by the Letter of Transmittal, are received by the
Exchange Agent within five New York Stock Exchange trading days after the
date of execution of such Notice of Guaranteed Delivery.
The Notice of Guaranteed Delivery may be delivered by hand, or transmitted
by facsimile or mail to the Exchange Agent and must include a guarantee by an
Eligible Institution in the form set forth in such notice.
The Company's and the Trust's acceptance for exchange of Old Capital
Securities tendered pursuant to any of the procedures described above will
constitute a binding agreement between the tendering holder, the Company and
the Trust upon the terms and subject to the conditions of the Exchange Offer.
Determination of Validity. All questions as to the form of documents,
validity, eligibility (including time of receipt) and acceptance for exchange
of any tendered Old Capital Securities will be determined by the Company
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and the Trust, in their sole discretion, whose determination shall be final
and binding on all parties. The Company and the Trust reserve the absolute
right, in their sole and absolute discretion, to reject any and all tenders
determined by them not to be in proper form or the acceptance of which, or
exchange for, may, in the view of counsel to the Company and the Trust, be
unlawful. The Company and the Trust also reserve the absolute right, subject
to applicable law, to waive any of the conditions of the Exchange Offer as set
forth under "--Conditions to the Exchange Offer" or any condition, defect or
irregularity in any tender of Old Capital Securities of any particular holder
whether or not similar conditions, defects or irregularities are waived in the
case of other holders.
The Company's and the Trust's interpretation of the terms and conditions of
the Exchange Offer (including the Letter of Transmittal and the instructions
thereto) will be final and binding on all parties. No tender of Old Capital
Securities will be deemed to have been validly made until all irregularities
with respect to such tender have been cured or waived. Neither the Company,
the Trust, any affiliates or assigns of the Company or the Trust, the Exchange
Agent nor any other person shall be under any duty to give any notification of
any defects or irregularities in tenders or incur any liability for failure to
give any such notification.
If any Letter of Transmittal, endorsement, bond power, power of attorney or
any other document required by the Letter of Transmittal is signed by a
trustee, executor, administrator, guardian, attorney-in-fact, officer of a
corporation or other person acting in a fiduciary or representative capacity,
such person should so indicate when signing and, unless waived by the Company
and the Trust, proper evidence satisfactory to the Company and the Trust, in
their sole discretion, of such person's authority to so act must be submitted.
A beneficial owner of Old Capital Securities that are held by or registered
in the name of a broker, dealer, commercial bank, trust company or other
nominee or custodian is urged to contact such entity promptly if such
beneficial holder wishes to participate in the Exchange Offer.
RESALES OF NEW CAPITAL SECURITIES
The Trust is making the Exchange Offer for the Capital Securities in
reliance on the position of the SEC staff as set forth in certain interpretive
letters addressed to third parties in other transactions. However, neither the
Company nor the Trust sought its own interpretive letter and there can be no
assurance that the SEC Staff would make a similar determination with respect
to the Exchange Offer as it has in such interpretive letters to third parties.
Based on these interpretations by the SEC Staff, and subject to the two
immediately following sentences, the Company and the Trust believe that New
Capital Securities issued pursuant to this Exchange Offer in exchange for Old
Capital Securities may be offered for resale, resold and otherwise transferred
by a holder thereof (other than a holder who is a broker-dealer) without
further compliance with the registration and prospectus delivery requirements
of the Securities Act, provided that such New Capital Securities are acquired
in the ordinary course of such holder's business and that such holder is not
participating, and has no arrangement or understanding with any person to
participate, in a distribution (within the meaning of the Securities Act) of
such New Capital Securities. However, any holder of Old Capital Securities who
is an "affiliate" of the Company or the Trust or who intends to participate in
the Exchange Offer for the purpose of distributing New Capital Securities, or
any broker-dealer who purchased Old Capital Securities from the Trust to
resell pursuant to Rule 144A or any other available exemption under the
Securities Act, (a) will not be able to rely on the interpretations of the
staff of the Division of Corporation Finance of the Commission set forth in
the above-mentioned interpretive letters, (b) will not be permitted or
entitled to tender such Old Capital Securities in the Exchange Offer and (c)
must comply with the registration and prospectus delivery requirements of the
Securities Act in connection with any sale or other transfer of such Old
Capital Securities unless such sale is made pursuant to an exemption from such
requirements. In addition, as described below, if any broker-dealer holds Old
Capital Securities acquired for its own account as a result of market-making
or other trading activities and exchanges such Old Capital Securities for New
Capital Securities, then such broker-dealer must deliver a prospectus meeting
the requirements of the Securities Act in connection with any resales of such
New Capital Securities.
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Each holder of Old Capital Securities who wishes to exchange Old Capital
Securities for New Capital Securities in the Exchange Offer will be required
to represent that (i) it is not an "affiliate" of the Company or the Trust,
(ii) any New Capital Securities to be received by it are being acquired in the
ordinary course of its business, (iii) it has no arrangement or understanding
with any person to participate in a distribution (within the meaning of the
Securities Act) of such New Capital Securities, and (iv) if such holder is not
a broker-dealer, such holder is not engaged in, and does not intend to engage
in, a distribution (within the meaning of the Securities Act) of such New
Capital Securities. The Letter of Transmittal contains the foregoing
representations.
In addition, the Company and the Trust may require a holder, as a condition
to such holder's eligibility to participate in the Exchange Offer, to furnish
to the Company and the Trust (or an agent thereof) in writing information as
to the number of "beneficial owners" (within the meaning of Rule 13d-3 under
the Exchange Act) on behalf of whom such holder holds the Capital Securities
to be exchanged in the Exchange Offer. Each broker-dealer that receives New
Capital Securities for its own account pursuant to the Exchange Offer must
acknowledge that it acquired the Old Capital Securities for its own account as
the result of market-making activities or other trading activities and must
agree that it will deliver a prospectus meeting the requirements of the
Securities Act in connection with any resale of such New Capital Securities.
The Letter of Transmittal states that by so acknowledging and by delivering a
prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act. Based on the position
taken by the SEC staff in the interpretive letters referred to above, the
Company and the Trust believe that broker-dealers who acquired Old Capital
Securities for their own accounts as a result of market-making activities or
other trading activities ("Participating Broker-Dealers") may fulfill their
prospectus delivery requirements with respect to the New Capital Securities
received upon exchange of such Old Capital Securities (other than Old Capital
Securities which represent an unsold allotment from the original sale of the
Old Capital Securities) with a prospectus meeting the requirements of the
Securities Act, which may be the prospectus prepared for an exchange offer so
long as it contains a description of the plan of distribution with respect to
the resale of such New Capital Securities. Accordingly, this Prospectus, as it
may be amended or supplemented from time to time, may be used by a
Participating Broker-Dealer during the 90-day period referred to below in
connection with resales of New Capital Securities received in exchange for Old
Capital Securities where such Old Capital Securities were acquired by such
Participating Broker-Dealer for its own account as a result of market-making
or other trading activities. Subject to certain provisions set forth in the
Registration Rights Agreement and to the limitations described herein, the
Company and the Trust have agreed that this Prospectus, as it may be amended
or supplemented from time to time, may be used by a Participating Broker-
Dealer in connection with resales of such New Capital Securities for a period
ending 90 days after the Expiration Date or, if earlier, when all such New
Capital Securities have been disposed of by such Participating Broker-Dealer.
See "Plan of Distribution." Any person, including any Participating Broker-
Dealer, who is an "affiliate" of the Company or the Trust may not rely on such
interpretive letters and must comply with the registration and prospectus
delivery requirements of the Securities Act in connection with any resale
transaction.
In that regard, each Participating Broker-Dealer who surrenders Old Capital
Securities pursuant to the Exchange Offer will be deemed to have agreed, by
execution of the Letter of Transmittal or delivery of any Agent's Message in
lieu thereof, that, upon receipt of notice from the Company or the Trust of
the occurrence of any event or the discovery of any fact which makes any
statement contained or incorporated by reference in this Prospectus untrue in
any material respect or which causes this Prospectus to omit to state a
material fact necessary in order to make the statements contained or
incorporated by reference herein, in light of the circumstances under which
they were made, not misleading or of the occurrence of certain other events
specified in the Registration Rights Agreement, such Participating Broker-
Dealer will suspend the sale of New Capital Securities (or the New Guarantee
or the New Junior Subordinated Debentures, as applicable) pursuant to this
Prospectus until the Company or the Trust has amended or supplemented this
Prospectus to correct such misstatement or omission and has furnished copies
of the amended or supplemented Prospectus to such Participating Broker-Dealer
or the Company or the Trust has given notice that the sale of the New Capital
Securities (or the New Guarantee or the New Junior Subordinated Debentures, as
applicable) may be resumed, as the case may be.
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<PAGE>
WITHDRAWAL RIGHTS
As set forth below, tenders of Old Capital Securities may be withdrawn at
any time on or prior to the Expiration Date.
In order for a withdrawal to be effective a written or facsimile
transmission of such notice of withdrawal must be received by the Exchange
Agent at one of its addresses set forth under "--Exchange Agent" on or prior
to the Expiration Date. Any such notice of withdrawal must specify the name of
the person who tendered the Old Capital Securities to be withdrawn, the
aggregate Liquidation Amount of Old Capital Securities to be withdrawn, and
(if certificates for such Old Capital Securities have been tendered) the name
of the registered holder of the Old Capital Securities as set forth on the
certificate for the Old Capital Securities, if different from that of the
person who tendered such Old Capital Securities. If certificates for the Old
Capital Securities have been delivered or otherwise identified to the Exchange
Agent, then prior to the physical release of such certificates for the Old
Capital Securities, the tendering holder must submit the serial numbers shown
on the particular certificates for the Old Capital Securities to be withdrawn
and the signature on the notice of withdrawal must be guaranteed by an
Eligible Institution, except in the case of Old Capital Securities tendered
for the account of an Eligible Institution. If Old Capital Securities have
been tendered pursuant to the procedures for book-entry transfer set forth in
"--Procedures for Tendering Old Capital Securities," the notice of withdrawal
must specify the name and number of the account at DTC to be credited with the
withdrawn Old Capital Securities. Withdrawals of tenders of Old Capital
Securities may not be rescinded. Old Capital Securities properly withdrawn
will not be deemed validly tendered for purposes of the Exchange Offer, but
may be retendered at any subsequent time on or prior to the Expiration Date by
following any of the procedures described above under "--Procedures for
Tendering Old Capital Securities."
All questions as to the validity, form and eligibility (including time of
receipt) of such withdrawal notices will be determined by the Company and the
Trust, in their sole discretion, whose determination shall be final and
binding on all parties. Neither the Company, the Trust, any affiliates or
assigns of the Company or the Trust, the Exchange Agent nor any other person
shall be under any duty to give any notification of any irregularities in any
notice of withdrawal or incur any liability for failure to give any such
notification. Any Old Capital Securities which have been tendered but which
are withdrawn will be returned to the holder thereof promptly after
withdrawal.
DISTRIBUTIONS ON NEW CAPITAL SECURITIES
Each New Capital Security will accumulate Distributions from the most recent
Distribution Date on the Old Capital Securities surrendered in exchange for
such New Capital Securities or, if no Distributions have been paid or provided
for on such Old Capital Securities, from December 8, 1997. As a result,
holders of Old Capital Securities that are accepted for exchange will not
receive accumulated Distributions on such Old Capital Securities for any
period from and after the most recent Distribution Date on such Old Capital
Securities or, if no Distributions have been paid or provided for on such Old
Capital Securities, from and after December 8, 1997, and such holders will be
deemed to have waived the right to receive any Distributions on such Old
Capital Securities.
CONDITIONS TO THE EXCHANGE OFFER
Notwithstanding any other provisions of the Exchange Offer, or any extension
of the Exchange Offer, the Company and the Trust will not be required to
accept any Old Capital Securities for exchange or to exchange any New Capital
Securities for any Old Capital Securities, and, as described below, may
terminate the Exchange Offer (whether or not any Old Capital Securities have
been accepted for exchange) or may waive any conditions to or amend the
Exchange Offer, if any of the following conditions have occurred or exists or
have not been satisfied:
(a) there shall occur a change in the current interpretation by the Staff
which permits the New Capital Securities issued pursuant to the Exchange
Offer in exchange for Old Capital Securities to be offered for
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resale, resold and otherwise transferred by holders thereof (other than
broker-dealers and any such holder which is an "affiliate" of the Company
or the Trust within the meaning of Rule 405 under the Securities Act)
without compliance with the registration and prospectus delivery provisions
of the Securities Act provided that such New Capital Securities are
acquired in the ordinary course of such holders' business and such holders
have no arrangement or understanding with any person to participate in the
distribution of such New Capital Securities;
(b) any action or proceeding shall have been instituted or threatened in
any court or by or before any governmental agency or body with respect to
the Exchange Offer which, in the Company's and the Trust's judgment, would
reasonably be expected to impair the ability of the Company or the Trust to
proceed with the Exchange Offer;
(c) any law, statute, rule or regulation shall have been adopted enacted
which, in the Company's and the Trust's judgment, would reasonably be
expected to impair the ability of the Company or the Trust to proceed with
the Exchange Offer;
(d) trading on the New York Stock Exchange or generally in the United
States over-the-counter market shall have been suspended by order of the
Commission or any other governmental authority which, in the Company's and
the Trust's judgment, would reasonably be expected to impair the ability of
the Company or the Trust to proceed with the Exchange Offer;
(e) a stop order shall have been issued by the Commission or any state
securities authority suspending the effectiveness of the Registration
Statement or proceedings shall have been initiated or, to the knowledge of
the Company or the Trust, threatened for that purpose, or any governmental
approval has not been obtained, which approval the Company and the Trust
shall, in their sole discretion, deem necessary for the consummation of the
Exchange Offer as contemplated hereby; or
(f) any change, or any development involving a prospective change, in the
business or financial affairs of the Company or any of its subsidiaries has
occurred which, in the sole judgment of the Company and the Trust, might
materially impair the ability of the Company or the Trust to proceed with
the Exchange Offer.
If the Company and the Trust determine in their sole and absolute discretion
that any of the foregoing events or conditions has occurred or exists or has
not been satisfied, the Company and the Trust may, subject to applicable law,
terminate the Exchange Offer (whether or not any Old Capital Securities have
theretofore been accepted for exchange) or may waive any such condition or
otherwise amend the terms of the Exchange Offer in any respect. If such waiver
or amendment constitutes a material change to the Exchange Offer, the Company
and the Trust will promptly disclose such waiver by means of a prospectus
supplement that will be distributed to the registered holders of the Old
Capital Securities, and the Company and the Trust will extend the Exchange
Offer to the extent required by Rule 14e-1 under the Exchange Act.
EXCHANGE AGENT
The Chase Manhattan Bank has been appointed as Exchange Agent for the
Exchange Offer. Delivery of a Letter of Transmittal and any other documents
required by the Letter of Transmittal, questions, requests for assistance, and
requests for additional copies of this Prospectus or of a Letter of Transmittal
should be directed to the Exchange Agent as follows:
By Registered or Certified Mail: By Overnight Courier or Hand:
The Chase Manhattan Bank The Chase Manhattan Bank
55 Water Street 55 Water Street
Room 234, North Building Room 234, North Building
New York, New York 10041 New York, New York 10041
Attn: Carlos Esteves Attn: Carlos Esteves
To Confirm by Telephone: By Facsimile Transmission:
(212) 638-0828 (212) 638-7380 or 7381
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Delivery to other than the above addresses or facsimile number will not
constitute a valid delivery.
FEES AND EXPENSES
The Company has agreed to pay the Exchange Agent reasonable and customary
fees for its services and will reimburse it for its reasonable out-of-pocket
expenses in connection therewith. The Company will also pay brokerage houses
and other custodians, nominees and fiduciaries the reasonable out-of-pocket
expenses incurred by them in forwarding copies of this Prospectus and related
documents to the beneficial owners of Old Capital Securities, and in handling
or tendering for their customers.
Holders who tender their Old Capital Securities for exchange will not be
obligated to pay any transfer taxes in connection therewith. If, however, New
Capital Securities are to be delivered to, or are to be issued in the name of,
any person other than the registered holder of the Old Capital Securities
tendered, or if a transfer tax is imposed for any reason other than the
exchange of Old Capital Securities in connection with the Exchange Offer, then
the amount of any such transfer taxes (whether imposed on the registered
holder or any other persons) will be payable by the tendering holder. If
satisfactory evidence of payment of such taxes or exemption therefrom is not
submitted with the Letter of Transmittal, the amount of such transfer taxes
will be billed directly to such tendering holder.
Neither the Company nor the Trust will make any payment to brokers, dealers
or others soliciting acceptances of the Exchange Offer.
DESCRIPTION OF NEW SECURITIES
DESCRIPTION OF CAPITAL SECURITIES
Pursuant to the terms of the Trust Agreement, the Trust has issued Old
Capital Securities and Common Securities and, in the event the Exchange Offer
is consummated, will issue New Capital Securities. The New Capital Securities
will represent undivided beneficial interests in the assets of the Trust and
the holders thereof will be entitled to a preference in certain circumstances
with respect to Distributions and amounts payable on redemption of the Trust
Securities or liquidation of the Trust over the Common Securities. See "--
Subordination of Common Securities." The Trust Agreement has been qualified
under the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act").
The forms and terms of the New Capital Securities are identical in all
material respects to the forms and terms of the Old Capital Securities, except
that the New Capital Securities have been registered under the Securities Act
and therefore are not subject to certain restrictions on transfer applicable
to the Old Capital Securities and will not provide for any increase in the
Distribution rate thereon. Accordingly, as the context may require, unless
expressly stated otherwise, "Capital Securities" means the Old Capital
Securities and, in the event the Exchange Offer is consummated, the New
Capital Securities. This summary of certain provisions of the Capital
Securities, the Common Securities and the Trust Agreement does not purport to
be complete and is subject to, and is qualified in its entirety by reference
to, all the provisions of the Trust Agreement, including the definitions
therein of certain terms.
The Capital Securities (including the Old Capital Securities and the New
Capital Securities) are limited to $250,000,000 aggregate Liquidation Amount
at any one time outstanding. The Capital Securities rank pari passu, and
payments are made thereon pro rata, with the Common Securities except as
described under "--Subordination of Common Securities." The New Capital
Securities and any Old Capital Securities that remain outstanding after
consummation of the Exchange Offer will constitute a single series of Capital
Securities under the Trust Agreement and, accordingly, will vote together as a
single class for purposes of determining whether holders of the requisite
percentage in outstanding Liquidation Amount thereof have taken certain
actions or exercised certain rights under the Trust Agreement. Legal title to
the Old Junior Subordinated Debentures is (and legal title to the New Junior
Subordinated Debentures will be) held by the Property Trustee in trust for the
benefit of the holders of Capital Securities and Common Securities. The New
Guarantee to be executed by the
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Company for the benefit of the holders of Capital Securities will be a
guarantee on a subordinated basis but will not guarantee payment of
Distributions or amounts payable on redemption of Capital Securities or on
liquidation of the Trust when the Trust does not have funds on hand legally
available to make such payments. See "Description of Guarantee."
DISTRIBUTIONS
Distributions on the New Capital Securities are cumulative, accumulate from
December 8, 1997 and are payable semi-annually in arrears at the annual rate
of 7.83% of the Liquidation Amount on June 1 and December 1 of each year,
commencing June 1, 1998, to the holders of the Capital Securities on the
relevant record dates. The record dates are the immediately preceding May 15
and November 15, respectively. The amount of Distributions payable for any
period is computed on the basis of a 360-day year of twelve 30-day months. In
the event that any date on which Distributions are payable on the Capital
Securities is not a Business Day (as defined below), payment of the
Distribution payable on such date will be made on the next succeeding day that
is a Business Day (and without any interest or other payment in respect to any
such delay), in each case with the same force and effect as if made on such
date (each date on which Distributions are payable in accordance with the
foregoing, a "Distribution Date"). A "Business Day" means any day which is not
a Saturday or Sunday and which is neither a legal holiday nor a day on which
banking institutions in The City of New York are authorized or required by law
or executive order to close or a day on which the principal corporate trust
office of the Property Trustee or the Debenture Trustee is closed for
business.
So long as no Debenture Event of Default has occurred and is continuing, the
Company has the right under the Indenture to defer the payment of interest on
the Junior Subordinated Debentures at any time or from time to time for a
period not exceeding 10 consecutive semi-annual periods, during which
Extension Period the Company has the right to make partial interest payments.
No Extension Period may end or extend beyond the Stated Maturity. If and to
the extent that interest payments on the Junior Subordinated Deventures are
deferred, semi-annual Distributions on the Capital Securities by the Trust
will be deferred during any such Extension Period. Distributions to which
holders of the Capital Securities are entitled will accumulate Additional
Distributions equal to any Additional Interest received by the Trust in
respect of the Junior Subordinated Debentures. The term "Distributions" as
used herein shall include any such Additional Distributions, Special
Distributions and Additional Tax Sums, if applicable.
During any such Extension Period, the Company may not (i) declare or pay any
dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of the Company's capital stock or
(ii) make any payment of principal, interest or premium, if any, on or repay,
repurchase or redeem any debt securities of the Company that rank pari passu
with or junior to the Junior Subordinated Debentures or make any guarantee
payments with respect to any guarantee by the Company of the debt securities
of any subsidiary of the Company (including Other Guarantees) if such
guarantee ranks pari passu with or junior to the Junior Subordinated
Debentures (other than (a) dividends or distributions in common stock of the
Company, (b) any declaration of a dividend in connection with the
implementation of a stockholders' rights plan, or the issuance of stock under
any such plan, or the redemption or repurchase of any such rights pursuant
thereto, (c) payments under the Guarantee and (d) purchases of common stock
related to the issuance of common stock or rights under any of the Company's
benefit plans for its directors, officers, employees, consultants or
advisors).
Prior to the termination of any such Extension Period, the Company may
further extend such Extension Period, provided that such extension does not
cause such Extension Period to exceed 10 consecutive semi-annual periods or to
extend beyond the Stated Maturity. Upon termination of any such Extension
Period and the payment of all amounts then due, and subject to the foregoing
limitations, the Company may elect to begin a new Extension Period. The
Company must give the Property Trustee, the Debenture Trustee and the
Administrative Trustees notice of its election of any such Extension Period at
least five Business Days prior to the earlier of (i) the date the
Distributions on the Capital Securities would have been payable except for the
election to begin such Extension Period or (ii) the date the Administrative
Trustees are required to give notice to any securities
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exchange or automated quotation system or to holders of Capital Securities of
the record date or the date such Distributions are payable but in any event
not less than five Business Days prior to such record date. There is no
limitation on the number of times that the Company may elect to begin an
Extension Period. See "Description of Junior Subordinated Debentures--Option
to Defer Interest Payments Period" and "Certain Federal Income Tax
Consequences--Interest Income and Original Issue Discount."
The revenue of the Trust available for distribution to holders of the
Capital Securities will be limited to payments under the Junior Subordinated
Debentures. See "Description of Junior Subordinated Debentures--General." If
the Company does not make interest payments on the Junior Subordinated
Debentures, the Property Trustee will not have funds legally available to pay
Distributions on the Capital Securities. The payment of Distributions (if and
to the extent the Trust has funds legally available for the payment of such
Distributions) is guaranteed by the Company on a subordinated basis as set
forth under "Description of Guarantee."
REDEMPTION
Upon the repayment in full at the Stated Maturity or prepayment in whole
(but not in part) of the Junior Subordinated Debentures, the proceeds from
such repayment or prepayment shall be applied by the Property Trustee to
redeem a Like Amount of the Trust Securities, upon not less than 20 nor more
than 60 days' notice of a date of redemption (the "Redemption Date"), at the
applicable Redemption Price, which shall be equal to (i) in the case of the
repayment of the Junior Subordinated Debentures at the Stated Maturity, the
Maturity Redemption Price (equal to the principal of, and accrued interest on,
the Junior Subordinated Debentures) or (ii) in the case of the optional
prepayment by the Company in whole but not in part of the Junior Subordinated
Debentures upon the occurrence and continuation of a Tax Event or an
Investment Company Event (A) prior to December 1, 2007 at the Event Redemption
Price (which is equal to the Event Prepayment Price in respect of the Junior
Subordinated Debentures) and (B) thereafter, at the Optional Redemption Price
(equal to the Optional Prepayment Price in respect of the Junior Subordinated
Debentures) (See "Description of Junior Subordinated Debentures--Optional
Prepayment"), and (iii) in the case of Optional Prepayment of the Junior
Subordinated Debentures on or after December 1, 2007, the Optional Redemption
Price (see "Description of Junior Subordinated Debentures--Tax Event or
Investment Company Event Prepayment").
The Company will have the right to prepay the Junior Subordinated Debentures
(i) in whole or in part from time to time on or after December 1, 2007, at the
applicable Optional Prepayment Price, and (ii) at any time, in whole (but not
in part) upon the occurrence of a Tax Event or Investment Company Event (A)
prior to December 1, 2007, at the Event Prepayment Price and (B) thereafter at
the Optional Prepayment Price.
LIQUIDATION OF THE TRUST AND DISTRIBUTION OF JUNIOR SUBORDINATED DEBENTURES
The Company has the right to terminate the Trust at any time and, after
satisfaction of liabilities to creditors of the Trust as provided by
applicable law, cause the Junior Subordinated Debentures to be distributed to
the holders of the Trust Securities in liquidation of the Trust. Such right is
subject to the Company's having received an opinion of counsel to the effect
that such distribution will not be a taxable event to holders of Capital
Securities for United States federal income tax purposes.
Under current United States federal income tax law and interpretations and
assuming, as expected, the Trust is treated as a grantor trust, a distribution
of the Junior Subordinated Debentures will not be a taxable event to holders
of the Capital Securities. Should there be a change in law, a change in legal
interpretation, a Tax Event or other circumstances, however, the distribution
could be a taxable event to holders of the Capital Securities. See "Certain
Federal Income Tax Consequences--Distribution of Junior Subordinated
Debentures to Holders of Capital Securities."
The Trust shall automatically terminate upon the first to occur of: (i)
certain events of bankruptcy, a receivership of the Company or dissolution or
liquidation of the Company; (ii) the dissolution or liquidation of the
Company; (iii) distribution of a Like Amount of Junior Subordinated Debentures
to the holders of the Trust
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Securities following the exercise of the Company's option to give written
direction to the Property Trustee to terminate the Trust, subject to the
requirement that the Company receive an opinion of counsel to the effect that
such distribution will not be a taxable event to holders of Capital Securities
for United States federal income tax purposes); (iv) redemption of all of the
Trust Securities in connection with the repayment of all Junior Subordinated
Debentures as described above under "--Redemption"; (v) the entry of an order
for the dissolution of the Trust by a court of competent jurisdiction and (vi)
the expiration of the term of the Trust on December 31, 2028.
If a termination occurs as described in clause (i), (ii), (iii) or (v)
above, the Trust shall be liquidated by the Issuer Trustees as expeditiously
as the Issuer Trustees determine to be possible by distributing, after
satisfaction of liabilities to creditors of the Trust as provided by
applicable law, to the holders of the Trust Securities a Like Amount of the
Junior Subordinated Debentures, unless such distribution is determined by the
Property Trustee not to be practicable, in which event such holders will be
entitled to receive out of the liquidation of the assets of the Trust
available for distribution to holders, after satisfaction of liabilities to
creditors of the Trust as provided by applicable law, an amount equal to the
aggregate of the Liquidation Amount plus accumulated and unpaid Distributions
thereon to the date of payment (such amount being the "Liquidation
Distribution"). If such Liquidation Distribution can be paid only in part
because the Trust has insufficient assets available to pay in full the
aggregate Liquidation Distribution, then the amounts payable directly by the
Trust on the Trust Securities shall be paid on a pro rata basis. The holder(s)
of the Common Securities will be entitled to receive Liquidation Distributions
upon any such liquidation pro rata with the holders of the Capital Securities,
except that if a Debenture Event of Default has occurred and is continuing,
the Capital Securities shall have a priority over the Common Securities. See
"--Subordination of Common Securities."
"Like Amount" means (i) with respect to a redemption of the Trust
Securities, Trust Securities having a Liquidation Amount equal to the
principal amount of Junior Subordinated Debentures to be paid in accordance
with their terms and (ii) with respect to a distribution of Junior
Subordinated Debentures upon the liquidation of the Trust, Junior Subordinated
Debentures having a principal amount equal to the Liquidation Amount of the
Trust Securities of the holder to whom such Junior Subordinated Debentures are
distributed.
If the Company elects not to prepay the Junior Subordinated Debentures prior
to the Stated Maturity and if there is no early dissolution of the Trust, the
Capital Securities will remain outstanding until the repayment of the Junior
Subordinated Debentures at the Stated Maturity.
After any liquidation date is fixed for any distribution of Junior
Subordinated Debentures to holders of the Trust Securities, (i) the Capital
Securities will no longer be deemed to be outstanding, (ii) DTC or its
nominee, as the record holder of the Capital Securities, will receive a
registered global certificate or certificates representing the Junior
Subordinated Debentures to be delivered upon such distribution and (iii) any
certificates representing Capital Securities not held by DTC or its nominee
will be deemed to represent Junior Subordinated Debentures having a principal
amount equal to the Liquidation Amount of such Capital Securities and bearing
accrued and unpaid interest in an amount equal to the accrued and unpaid
Distributions on such Capital Securities until such certificates are presented
to the Administrative Trustees or their agent for cancellation, whereupon the
Company will issue to such holder, and the Debenture Trustee will
authenticate, a certificate representing such Junior Subordinated Debentures.
There can be no assurance as to the market prices for the Capital Securities
or the Junior Subordinated Debentures that may be distributed in exchange for
the Trust Securities if a dissolution and liquidation of the Trust were to
occur. Accordingly, the Capital Securities, or the Junior Subordinated
Debentures that the investor may receive on liquidation of the Trust, may
trade at a discount to the price that the investor initially paid to purchase
the Capital Securities.
REDEMPTION PROCEDURES
Trust Securities shall be redeemed, if at all, at the applicable Redemption
Price with the proceeds from the contemporaneous repayment or prepayment of
the Junior Subordinated Debentures. Redemptions of the Trust
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Securities shall be made and the applicable Redemption Price shall be payable
on the Redemption Date only to the extent that the Trust has funds on hand
legally available for the payment of such applicable Redemption Price. See "--
Subordination of Common Securities."
If the Property Trustee gives a notice of redemption in respect of any
Capital Securities, then, by 11:00 a.m., New York City time, on the Redemption
Date, the Company shall deposit sufficient funds with the Property Trustee to
pay the applicable Redemption Price. If such deposit has been made, then by
12:00 noon, New York City time, on the Redemption Date, to the extent funds
are legally available, with respect to the Capital Securities held in global
form, the Property Trustee will deposit irrevocably with DTC funds sufficient
to pay the applicable Redemption Price and will give DTC irrevocable
instructions and authority to pay the applicable Redemption Price to the
holders of the Capital Securities. See "--Form, Denomination, Book-Entry
Procedures and Transfer" and "--Payment and Paying Agency." With respect to
the Capital Securities held in certificated form, the Property Trustee, to the
extent funds are legally available, will irrevocably deposit with the paying
agent for the Capital Securities funds sufficient to pay the applicable
Redemption Price and will give such paying agent irrevocable instructions and
authority to pay the applicable Redemption Price to the holders thereof upon
surrender of their certificates evidencing the Capital Securities. See "--
Payment and Paying Agency."
Notwithstanding the foregoing, Distributions payable on or prior to the
Redemption Date shall be payable to the holders of such Capital Securities on
the relevant record dates for the related Distribution Dates. If notice of
redemption shall have been given and funds deposited as required, then upon
the date of such deposit, all rights of the holders of the Capital Securities
will cease, except the right of the holders of the Capital Securities to
receive the applicable Redemption Price and any Distribution payable on or
prior to the Redemption Date, but without interest, and the Capital Securities
will cease to be outstanding. In the event that any Redemption Date of Capital
Securities is not a Business Day, then payment of the applicable Redemption
Price payable on such date will be made on the next succeeding day which is a
Business Day (and without any interest or other payment in respect of any such
delay). In the event that payment of the applicable Redemption Price is
improperly withheld or refused and not paid either by the Trust or by the
Company pursuant to the Guarantee as described under "Description of
Guarantee," Distributions on Capital Securities will continue to accumulate at
the then applicable rate, from the Redemption Date originally established by
the Trust to but excluding the date such applicable Redemption Price is
actually paid, in which case the actual payment date will be the date fixed
for redemption for purposes of calculating the applicable Redemption Price.
Subject to applicable law (including, without limitation, United States
federal securities law), the Company or its subsidiaries may at any time and
from time to time purchase outstanding Capital Securities by tender, in the
open market or by private agreement.
Payment of the applicable Redemption Price on, and any distribution of
Junior Subordinated Debentures to holders of, the Trust Securities shall be
made to the applicable recordholders thereof as they appear on the register
therefor on the relevant record date, which shall be a date not more than 45
days nor less than 15 days prior to the Redemption Date or liquidation date,
as applicable.
Notice of any redemption will be mailed at least 20 days but not more than
60 days before the Redemption Date to each holder of Trust Securities at its
registered address. Unless the Company defaults in payment of the applicable
Prepayment Price on, or in the repayment of, the Junior Subordinated
Debentures, on and after the Redemption Date Distributions will cease to
accumulate on the Trust Securities called for redemption.
SUBORDINATION OF COMMON SECURITIES
Payment of Distributions on, and the Redemption Price of, the Capital
Securities and Common Securities, as applicable, shall be made pro rata based
on the Liquidation Amounts of the Capital Securities and Common Securities;
provided, however, that if on any Distribution Date or Redemption Date a
Debenture Event of Default shall have occurred and be continuing, no payment
of any Distribution on, or applicable Redemption Price of, any of the Common
Securities, and no other payment on account of the redemption, liquidation or
other
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acquisition of the Common Securities, shall be made unless payment in full in
cash of all accumulated and unpaid Distributions on all of the outstanding
Capital Securities for all Distribution periods terminating on or prior
thereto, or in the case of payment of the applicable Redemption Price the full
amount of such Redemption Price on all outstanding Capital Securities, shall
have been made or provided for, and all funds immediately available to the
Property Trustee shall first be applied to the payment in full in cash of all
Distributions on, or Redemption Price of, the Capital Securities then due and
payable.
In the case of any Event of Default under the Trust Agreement resulting from
a Debenture Event of Default, the Company as holder of the Common Securities
will be deemed to have waived any right to act with respect to any such Event
of Default until the effect of all such Events of Default has been cured,
waived or otherwise eliminated. Until any such Events of Default have been so
cured, waived or otherwise eliminated, the Property Trustee shall act solely
on behalf of the holders of the Capital Securities and not on behalf of the
Company as holder of the Common Securities, and only the holders of the
Capital Securities will have the right to direct the Property Trustee to act
on their behalf.
EVENTS OF DEFAULT; NOTICE
Any one of the following events constitutes an Event of Default under the
Trust Agreement (an "Event of Default") (whatever the reason for such Event of
Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(i) the occurrence of a Debenture Event of Default (see "Description of
Junior Subordinated Debentures--Debenture Events of Default"); or
(ii) default by the Property Trustee in the payment of any Distribution
when it becomes due and payable, and continuation of such default for a
period of 30 days; or
(iii) default by the Property Trustee in the payment of any Redemption
Price of any Trust Security when it becomes due and payable; or
(iv) default in the performance, or breach, in any material respect, of
any covenant or warranty of the Issuer Trustees in the Trust Agreement
(other than a covenant or warranty a default in the performance of which or
the breach of which is addressed in clause (ii) or (iii) above) and
continuation of such default or breach for a period of 90 days after there
has been given, by registered or certified mail, to the defaulting Issuer
Trustee or Trustees by the holders of at least 25% in aggregate Liquidation
Amount of the outstanding Capital Securities, a written notice specifying
such default or breach and requiring it to be remedied and stating that
such notice is a "Notice of Default" under the Trust Agreement; or
(v) the occurrence of certain events of bankruptcy or insolvency with
respect to the Property Trustee and the failure to appoint a successor
Property Trustee within 60 days thereof.
Within 10 Business Days after the occurrence of any Event of Default
actually known to the Property Trustee, the Property Trustee shall transmit
notice of such Event of Default to the holders of the Capital Securities, the
Administrative Trustees and the Company, as Depositor, unless such Event of
Default shall have been cured or waived. The Company, as Depositor, and the
Administrative Trustees are required to file annually with the Property
Trustee a certificate as to whether or not they are in compliance with all the
conditions and covenants applicable to them under the Trust Agreement.
If a Debenture Event of Default has occurred and is continuing, the Capital
Securities shall have a preference over the Common Securities upon termination
of the Trust as described above. See "--Liquidation of the Trust and
Distribution of Junior Subordinated Debentures" and "--Subordination of Common
Securities."
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REMOVAL OF ISSUER TRUSTEES; APPOINTMENT OF SUCCESSORS
The holders of a majority in Liquidation Amount of Capital Securities may
remove the Property Trustee or the Delaware Trustee if a Debenture Event of
Default has occurred and is continuing. If the Property Trustee or the
Delaware Trustee is removed at a time when a Debenture Event of Default has
occurred and is continuing, the holders of a majority in Liquidation Amount of
Capital Securities may appoint a successor Property Trustee or Delaware
Trustee. If no Debenture Event of Default has occurred and is continuing at
such time, the Company, as holder of the Common Securities, may remove the
Property Trustee or Delaware Trustee and appoint a successor. If an
Administrative Trustee is removed, resigns or otherwise vacates office, the
Company, as holder of the Common Securities, shall promptly appoint a
successor. In no event will the holders of Capital Securities have the right
to vote to remove the Administrative Trustees, which voting rights are vested
exclusively in the Company, as holder of the Common Securities. If a successor
has not been appointed to fill a vacancy in accordance with the Trust
Agreement, any holder of Trust Securities (who has been a holder for at least
six months), or a resigning Trustee (in the case of the failure to appoint its
successor), may petition a court of competent jurisdiction to appoint a
successor. Any Delaware Trustee must meet the applicable requirements of
Delaware law. Any Property Trustee must be a national or state-chartered bank
and at the time of appointment have securities rated in one of the three
highest rating categories by a nationally recognized statistical rating
organization and have capital and surplus of at least $50,000,000. Each
Administrative Trustee shall be a current officer of the Company. No
resignation or removal of an Issuer Trustee and no appointment of a successor
trustee shall be effective until the acceptance of appointment by the
successor trustee in accordance with the provisions of the Trust Agreement.
MERGER OR CONSOLIDATION OF ISSUER TRUSTEES
Any entity into which the Property Trustee or the Delaware Trustee may be
merged or converted or with which it may be consolidated, or any entity
resulting from any merger, conversion or consolidation to which such Issuer
Trustee shall be a party, or any entity succeeding to all or substantially all
the corporate trust business of such Issuer Trustee, shall be the successor of
such Issuer Trustee under the Trust Agreement, provided such entity shall be
otherwise qualified and eligible.
MERGERS, CONSOLIDATIONS, AMALGAMATIONS OR REPLACEMENTS OF THE TRUST
The Trust may not merge with or into, consolidate, amalgamate or be replaced
by, or convey, transfer or lease its properties and assets substantially as an
entirety to any corporation or other entity, except as described below or
pursuant to a liquidation as described above in "--Liquidation of the Trust
and Distribution of Junior Subordinated Debentures." The Trust may, at the
request of the Company, as Depositor, and with the consent of the
Administrative Trustees, but without the consent of the holders of the Capital
Securities, the Property Trustee or the Delaware Trustee, merge with or into,
consolidate, amalgamate or be replaced by or convey, transfer or lease its
properties and assets substantially as an entirety to a trust organized as
such under the laws of any State; provided, however, that (i) such successor
entity either (a) expressly assumes all of the obligations of the Trust with
respect to the Capital Securities or (b) substitutes for the Capital
Securities other securities having substantially the same terms as the Capital
Securities (the "Successor Securities") so long as the Successor Securities
rank the same as the Capital Securities rank in priority with respect to
distributions and payments upon liquidation, redemption and otherwise, (ii)
the Company expressly appoints a trustee of such successor entity possessing
the same powers and duties as the Property Trustee as the holder of the Junior
Subordinated Debentures, (iii) subject to applicable principles of federal
securities laws, the Successor Securities are listed, or any Successor
Securities will be listed upon notification of issuance, on any national
securities exchange or other organization on which the Capital Securities are
then listed, if any, (iv) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not cause the Capital
Securities (including any Successor Securities) to be downgraded by any
nationally recognized statistical rating organization, (v) such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease does
not adversely affect the rights, preferences and privileges of the holders of
the Capital Securities (including any Successor Securities) in any material
respect, (vi) such successor entity has a purpose substantially identical to
that of the Trust, (vii)
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prior to such merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease, the Company has received an opinion from independent
counsel to the Trust experienced in such matters to the effect that (a) such
merger, consolidation, amalgamation, replacement, conveyance, transfer or
lease does not adversely affect the rights, preferences and privileges of the
holders of the Capital Securities (including any Successor Securities) in any
material respect, and (b) following such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, neither the Trust nor such
successor entity will be required to register as an investment company under
the Investment Company Act of 1940, as amended (the "Investment Company Act"),
and (viii) the Company or any permitted successor or assignee owns all of the
common securities of such successor entity and guarantees the obligations of
such successor entity under the Successor Securities at least to the extent
provided by the Guarantee. Notwithstanding the foregoing, the Trust shall not,
except with the consent of holders of 100% in Liquidation Amount of the
Capital Securities, consolidate, amalgamate, merge with or into, or be
replaced by or convey, transfer or lease its properties and assets
substantially as an entirety to any other entity or permit any other entity to
consolidate, amalgamate, merge with or into, or replace it if such
consolidation, amalgamation, merger, replacement, conveyance, transfer or
lease would cause the Trust or the successor entity to be classified as other
than a grantor trust for United States federal income tax purposes. In
addition, the Property Trustee will be required pursuant to the Indenture to
exchange, as a part of the Exchange Offer, the Junior Subordinated Debentures
for the Exchange Debentures, which will have terms identical in all material
respects to the Junior subordinated Debentures except for the transfer
restrictions under the Securities Act and the provision for an increase in the
interest rate thereon under certain circumstances. See "Exchange Offer;
Registration Rights."
VOTING RIGHTS; AMENDMENT OF THE TRUST AGREEMENT
Except as provided below and under "Description of Guarantee--Amendments and
Assignment" and as otherwise required by law and the Trust Agreement, the
holders of the Capital Securities have no voting rights.
The Trust Agreement may be amended from time to time by the Company, and the
Issuer Trustees, without the consent of the holders of the Trust Securities,
(i) to cure any ambiguity, correct or supplement any provisions in the Trust
Agreement that may be inconsistent with any other provision or to make any
other provision with respect to matters or questions arising under the Trust
Agreement, which shall not be inconsistent with the other provisions of the
Trust Agreement, or (ii) to modify, eliminate or add to any provisions of the
Trust Agreement to such extent as shall be necessary to ensure that the Trust
will be classified for United States federal income tax purposes as a grantor
trust at all times that any Trust Securities are outstanding or to ensure that
the Trust will not be required to register as an "investment company" under
the Investment Company Act provided, however, that in the case of clause (i),
such action shall not adversely affect in any material respect the interests
of any holder of Trust Securities or the Property Trustee or the Delaware
Trustee, and any amendments of the Trust Agreement shall become effective when
notice thereof is given to the holders of the Trust Securities. The Trust
Agreement may be amended by the Issuer Trustees and the Company with (i) the
consent of holders representing not less than a majority (based upon
Liquidation Amounts) of the outstanding Trust Securities and (ii) receipt by
the Issuer Trustees of an opinion of counsel to the effect that such amendment
or the exercise of any power granted to the Issuer Trustees in accordance with
such amendment will not affect the Trust's status as a grantor trust for
United States federal income tax purposes or the Trust's exemption from status
as an "investment company" under the Investment Company Act. The Trust
Agreement may not be amended without the consent of each holder of Trust
Securities to (i) change the amount or timing of any Distribution on the Trust
Securities or otherwise adversely affect the amount of any Distribution
required to be made in respect of the Trust Securities as of a specified date
or (ii) restrict the right of a holder of Trust Securities to institute suit
for the enforcement of any such payment on or after such date.
So long as any Junior Subordinated Debentures are held by the Property
Trustee, the Issuer Trustees shall not (i) direct the time, method and place
of conducting any proceeding for any remedy available to the Debenture Trustee
or executing any trust or power conferred on the Debenture Trustee with
respect to the Junior Subordinated Debentures, (ii) waive any past default
that is waivable under the Indenture, (iii) exercise any right to rescind or
annul a declaration that the principal of all the Junior Subordinated
Debentures shall be due and
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payable or (iv) consent to any amendment, modification or termination of the
Indenture or the Junior Subordinated Debentures, where the consent of the
holders of the Junior Subordinated Debentures shall be required, without, in
each case, obtaining the prior approval of the holders of at least a majority
in Liquidation Amount of all outstanding Capital Securities; provided,
however, that where a consent under the Indenture would require the consent of
each holder of Junior Subordinated Debentures affected thereby, no such
consent shall be given by the Property Trustee without the prior written
consent of each holder of the Capital Securities. The Issuer Trustees shall
not revoke any action previously authorized or approved by a vote of the
holders of the Capital Securities, except by a subsequent vote of such
holders. The Property Trustee shall notify each holder of Capital Securities
of any notice of default with respect to the Junior Subordinated Debentures
unless such default shall have been cured or waived. In addition to obtaining
the foregoing approvals of such holders of the Capital Securities, prior to
taking any of the foregoing actions, the Issuer Trustees shall obtain an
opinion of counsel experienced in such matters to the effect that such action
will not cause the Trust to be classified as an association taxable as a
corporation for United States federal income tax purposes.
Any required approval of holders of Trust Securities may be given at a
meeting of such holders convened for such purpose. Any action that may be
taken by holders of Trust Securities at a meeting may be taken without a
meeting if holders of Trust Securities holding not less than a majority (or
such other proportion as may be required by any express provision of the Trust
Agreement) of outstanding Trust Securities (based upon their Liquidation
Amount) entitled to vote in respect of such action shall consent to the action
in writing. The Property Trustee will cause a notice of any meeting at which
holders of Trust Securities are entitled to vote, or of any matter upon which
action by written consent of such holders is to be taken, to be given to each
holder of record of Trust Securities in the manner set forth in the Trust
Agreement.
No vote or consent of the holders of Capital Securities is required for the
Trust to redeem and cancel the Capital Securities in accordance with the Trust
Agreement.
Notwithstanding that holders of the Capital Securities are entitled to vote
or consent under any of the circumstances described above, any of the Capital
Securities that are owned by the Company, the Issuer Trustees or any affiliate
of the Company or any Issuer Trustee, shall, for purposes of such vote or
consent, be treated as if they were not outstanding.
FORM, DENOMINATION, BOOK-ENTRY PROCEDURES AND TRANSFER
In the event that New Capital Securities are issued in certificated form,
such New Capital Securities will be in blocks having a Liquidation Amount of
not less than $100,000 (100 New Capital Securities) and may be transferred or
exchanged in such blocks in the manner and at the offices described below.
In the event that New Capital Securities are issued in registered, global
form (collectively, the "Global Capital Securities"), the Global Capital
Securities will be deposited upon issuance with the Property Trustee as
custodian for DTC, in New York, New York, and registered in the name of DTC or
its nominee, in each case for credit to an account of a direct or indirect
participant in DTC as described below.
Except as set forth below, Global Capital Securities may be transferred, in
whole and not in part, only to another nominee of DTC or to a successor of DTC
or its nominee. Beneficial interests in Global Capital Securities may not be
exchanged for New Capital Securities in certificated form except in the
limited circumstances described below. See "--Exchange of Book-Entry New
Capital Securities for Certificated New Capital Securities."
DEPOSITARY PROCEDURES
DTC has advised the Trust and the Company that DTC is a limited-purpose
trust company created to hold securities for its participating organizations
(collectively, the "Participants") and to facilitate the clearance and
settlement of transactions in those securities between Participants through
electronic book-entry changes in
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accounts of its Participants. The Participants include securities brokers and
dealers (including the Initial Purchasers), banks, trust companies, clearing
corporations and certain other organizations. Access to DTC's system is also
available to other entities such as banks, brokers, dealers and trust
companies that clear through or maintain a custodial relationship with a
Participant, either directly or indirectly (collectively, the "Indirect
Participants"). Persons who are not Participants may beneficially own
securities held by or on behalf of DTC only through the Participants or the
Indirect Participants. The ownership interest and transfer of ownership
interest of each actual purchaser of each security held by or on behalf of DTC
are recorded on the records of the Participants and Indirect Participants.
DTC has also advised the Trust and the Company that, pursuant to procedures
established by it, (i) upon deposit of Global Capital Securities, DTC will
credit the accounts of Participants designated by the Exchange Agent with
portions of the Liquidation Amount of such Global Capital Securities and (ii)
ownership of such interests in such Global Capital Securities will be shown
on, and the transfer of ownership thereof will be effected only through,
records maintained by DTC (with respect to the Participants) or by the
Participants and the Indirect Participants (with respect to other owners of
beneficial interests in the Global Capital Securities).
EXCEPT AS DESCRIBED BELOW, OWNERS OF INTERESTS IN GLOBAL CAPITAL SECURITIES
WILL NOT HAVE NEW CAPITAL SECURITIES REGISTERED IN THEIR NAME, WILL NOT
RECEIVE PHYSICAL DELIVERY OF NEW CAPITAL SECURITIES IN CERTIFICATED FORM AND
WILL NOT BE CONSIDERED THE REGISTERED OWNERS OR HOLDERS THEREOF UNDER THE
TRUST AGREEMENT FOR ANY PURPOSE.
Payments in respect of a Global Capital Security registered in the name of
DTC or its nominee will be payable by the Property Trustee to DTC in its
capacity as the registered holder under the Trust Agreement. Under the terms
of the Trust Agreement, the Property Trustee will treat the persons in whose
names the New Capital Securities, including Global Capital Securities, are
registered as the owners thereof for the purpose of receiving such payments
and for any and all other purposes whatsoever. Consequently, neither the
Property Trustee nor any agent thereof has or will have any responsibility or
liability for (i) any aspect of DTC's records or any Participant's or Indirect
Participant's records relating to or payments made on account of beneficial
ownership interests in Global Capital Securities, or for maintaining,
supervising or reviewing any of DTC's records or any Participant's or Indirect
Participant's records relating to the beneficial ownership interests in Global
Capital Securities or (ii) any other matter relating to the actions and
practices of DTC or any of its Participants or Indirect Participants. DTC has
advised the Trust and the Company that its current practice, upon receipt of
any payment in respect of securities such as the New Capital Securities, is to
credit the accounts of the relevant Participants with the payment on the
payment date, in amounts proportionate to their respective holdings in
Liquidation Amount of beneficial interests in the relevant security as shown
on the records of DTC unless DTC has reason to believe it will not receive
payment on such payment date. Payments by the Participants and the Indirect
Participants to the beneficial owners of New Capital Securities will be
governed by standing instructions and customary practices and will be the
responsibility of the Participants or the Indirect Participants and will not
be the responsibility of DTC, the Property Trustee or the Trust. Neither the
Trust nor the Property Trustee will be liable for any delay by DTC or any of
its participants in identifying the beneficial owners of the New Capital
Securities, and the Trust and the Property Trustee may conclusively rely on
and will be protected in relying on instructions from DTC or its nominee for
all purposes.
Interests in Global Capital Securities will trade in DTC's Same-Day Funds
Settlement System and secondary market trading activity in such interests will
therefore settle in immediately available funds, subject in all cases to the
rules and procedures of DTC and its participants.
Transfers between Participants in DTC will be effected in accordance with
DTC's procedures, and will be settled in same-day funds.
DTC has advised the Trust and the Company that it will take any action
permitted to be taken by a holder of New Capital Securities only at the
direction of one or more Participants to whose account with DTC interests
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<PAGE>
in Global Capital Securities are credited and only in respect of such portion
of the aggregate Liquidation Amount of the New Capital Securities as to which
such Participant or Participants has or have given such direction. However, if
there is an Event of Default under the Trust Agreement, DTC reserves the right
to exchange Global Capital Securities for legended New Capital Securities in
certificated form and to distribute such New Capital Securities to its
Participants.
The information in this section concerning DTC and their book-entry systems
has been obtained from sources that the Trust and the Company believe to be
reliable, but neither the Trust nor the Company takes responsibility for the
accuracy thereof.
EXCHANGE OF BOOK-ENTRY NEW CAPITAL SECURITIES FOR CERTIFICATED NEW CAPITAL
SECURITIES
A Global Capital Security is exchangeable for New Capital Securities in
registered certificated form if (i) DTC (x) notifies the Trust that it is
unwilling or unable to continue as Depositary for the Global Capital Security
or (y) has ceased to be a clearing agency registered under the Exchange Act
and the Company fails to appoint a successor Depositary within 90 days, (ii)
the Company in its sole discretion elects to cause the issuance of the New
Capital Securities in certificated form or (iii) there shall have occurred and
be continuing an Event of Default or any event which after notice or lapse of
time or both would be an Event of Default under the Trust Agreement. In
addition, beneficial interests in a Global Capital Security may be exchanged
for certificated New Capital Securities upon request but only at least 20 days
prior written notice given to the Property Trustee by or on behalf of DTC in
accordance with customary procedures. In all cases, certificated New Capital
Securities delivered in exchange for any Global Capital Security or beneficial
interests therein will be registered in the names, and issued in any approved
denominations, requested by or on behalf of the Depositary (in accordance with
its customary procedures).
PAYMENT AND PAYING AGENCY
Payments in respect of Global Capital Securities shall be made to DTC, which
shall credit the relevant accounts at DTC on the applicable Distribution
Dates, or in respect of New Capital Securities that are not held by DTC, such
payments shall be made by check mailed to the address of the holder entitled
thereto as such address shall appear on the register. The paying agent (the
"Paying Agent") shall initially be the Property Trustee and any co-paying
agent chosen by the Property Trustee and acceptable to the Administrative
Trustees and the Company. The Paying Agent shall be permitted to resign as
Paying Agent upon 30 days' written notice to the Property Trustee and the
Company. In the event that the Property Trustee shall no longer be the Paying
Agent, the Administrative Trustees shall appoint a successor (which shall be a
bank or trust company acceptable to the Administrative Trustees and the
Company) to act as Paying Agent.
RESTRICTIONS ON TRANSFER
The New Capital Securities will be issued, and may be transferred only, in
blocks having a Liquidation Amount of not less than $100,000 (100 New Capital
Securities). Any attempted transfer, sale or other disposition of Capital
Securities in a block having a Liquidation Amount of less than $100,000 shall
be deemed to be void and of no legal effect whatsoever. Any such transferee
shall be deemed not to be the holder of such Capital Securities for any
purpose, including but not limited to the receipt of Distributions on such
Capital Securities, and such transferee shall be deemed to have no interest
whatsoever in such Capital Securities.
RATING
The Capital Securities have been rated "BBB+" by Standard & Poor's Ratings
Services, "baa1" by Moody's Investors Services, Inc. and "BBB" by Fitch
Investors Services, Inc. The ratings have been obtained with the understanding
that the assigning rating organization will continue to monitor the credit
ratings of the Company and the Trust and will make future adjustments to the
extent warranted. A security ratings is not a recommendation to buy, sell or
hold securities. It only reflects the views of the assigning rating
organization and may be subject to revision or withdrawal at any time by the
assigning rating organization.
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REGISTRAR AND TRANSFER AGENT
The Property Trustee will act as registrar and transfer agent for the New
Capital Securities. The Property Trustee also acts as registrar and transfer
agent for the Old Capital Securities.
Registration of transfers of the Capital Securities may be effected without
charge by or on behalf of the Trust, but the registrar may require payment of
a sum sufficient to cover any tax or governmental charge that may be imposed
in connection with any transfer or exchange. The Trust will not be required to
register or cause to be registered the transfer of the Capital Securities
after they have been called for redemption.
INFORMATION CONCERNING THE PROPERTY TRUSTEE
The Property Trustee, other than during the occurrence and continuance of an
Event of Default, undertakes to perform only such duties as are specifically
set forth in the Trust Agreement and, after such Event of Default, must
exercise the same degree of care and skill as a prudent person would exercise
or use in the conduct of his or her own affairs. Subject to this provision,
the Property Trustee is under no obligation to exercise any of the powers
vested in it by the Trust Agreement at the request of any holder of Trust
Securities unless it is offered reasonable indemnity against the costs,
expenses and liabilities that might be incurred thereby. If no Event of
Default has occurred and is continuing and the Property Trustee is required to
decide between alternative causes of action, construe ambiguous or
inconsistent provisions in the Trust Agreement or is unsure of the application
of any provision of the Trust Agreement, and the matter is not one on which
holders of the Capital Securities are entitled under the Trust Agreement to
vote, then the Property Trustee shall take such action as is directed by the
Company and if not so directed, shall take such action as it deems advisable
and in the best interests of the holders of the Trust Securities and will have
no liability except for its own bad faith, negligence or willful misconduct.
MISCELLANEOUS
The Administrative Trustees are authorized and directed to conduct the
affairs of and to operate the Trust in such a way that the Trust will not be
deemed to be an "investment company" required to be registered under the
Investment Company Act or classified as other than a grantor trust for United
States federal income tax purposes and so that the Junior Subordinated
Debentures will be treated as indebtedness of the Company for United States
federal income tax purposes. In this connection, the Company and the
Administrative Trustees are authorized to take any action, not inconsistent
with applicable law, the certificate of trust of the Trust or the Trust
Agreement, that the Company and the Administrative Trustees determine in their
discretion to be necessary or desirable for such purposes, as long as such
action does not materially adversely affect the interests of the holders of
the Trust Securities.
Holders of the Trust Securities have no preemptive or similar rights.
The Trust may not borrow money or issue debt or mortgage or pledge any of
its assets.
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DESCRIPTION OF NEW JUNIOR SUBORDINATED DEBENTURES
The Old Junior Subordinated Debentures were issued and the New Junior
Subordinated Debentures will be issued as a separate series under the
Indenture. The Indenture has been qualified under the Trust Indenture Act. In
the event the Exchange Offer is consummated, the Company will exchange the New
Junior Subordinated Debentures for the Old Junior Subordinated Debentures. The
form and terms of the New Junior Subordinated Debentures are identical in all
material respects to the form and terms of the Old Junior Subordinated
Debentures, except that the New Junior Subordinated Debentures have been
registered under the Securities Act and therefore are not subject to certain
restrictions on transfer applicable to the Old Junior Subordinated Debentures
and will not provide for any increase in the interest rate thereon.
Accordingly, as the context may require, unless expressly stated otherwise,
"Junior Subordinated Debentures" means the Old Junior Subordinated Debentures
and, in the event the Exchange Offer is consummated, the New Junior
Subordinated Debentures. This summary of certain terms and provisions of the
Junior Subordinated Debentures and the Indenture does not purport to be
complete, and where reference is made to particular provisions of the
Indenture, such provisions, including the definitions of certain terms, some
of which are not otherwise defined herein, are qualified in their entirety by
reference to all of the provisions of the Indenture and those terms made a
part of the Indenture by the Trust Indenture Act.
GENERAL
Concurrently with the issuance of the Old Capital Securities, the Trust
invested the proceeds thereof, together with the consideration paid by the
Company for the Common Securities, in the Old Junior Subordinated Debentures.
Pursuant to the Exchange Offer, the Company will exchange the Old Junior
Subordinated Debentures as soon as practicable after the consummation of the
Exchange Offer and the Old Junior Subordinated Debentures will be retired and
canceled.
The Junior Subordinated Debentures bear interest at the annual rate of 7.83%
of the principal amount thereof, payable semi-annually in arrears on June 1
and December 1 of each year (each, an "Interest Payment Date"), commencing
June 1, 1998, to the person in whose name each Junior Subordinated Debenture
is registered, subject to certain exceptions, at the close of business on the
Business Day next preceding such Interest Payment Date. It is anticipated that
until the liquidation, if any, of the Trust, each Junior Subordinated
Debenture will be held in the name of the Property Trustee in trust for the
benefit of the holders of the Trust Securities. The amount of interest payable
for any period will be computed on the basis of a 360-day year of twelve 30-
day months. In the event that any date on which interest is payable on the
Junior Subordinated Debentures 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 other payment in respect of any
such delay), in each case with the same force and effect as if made on the
date such payment was originally payable. Accrued interest that is not paid on
the applicable Interest Payment Date will bear additional interest
("Additional Interest") on the amount thereof (to the extent permitted by law)
at the rate per annum of 7.83% thereof, compounded semi-annually. The term
"interest" as used herein shall include semi-annual interest payments,
Additional Interest and Additional Tax Sums (as defined below), as applicable.
DENOMINATIONS, REGISTRATION AND TRANSFER
The New Junior Subordinated Debentures will be represented by one
certificate registered in the name of The Chase Manhattan Bank as Property
Trustee of the Trust. If distributed to holders of Capital Securities in
connection with a Tax Event or an Investment Company Event, the New Junior
Subordinated Debentures may be represented by one or more global certificates
registered in the name of Cede & Co. as the nominee of DTC and one or more New
Junior Subordinated Debentures in certificated form. Beneficial interests in
New Junior Subordinated Debentures in global form will be shown on, and
transfers thereof will be effected only through, records maintained by
participants in DTC. Except as described below, New Junior Subordinated
Debentures in certificated form will not be issued in exchange for the global
certificates.
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A global security shall be exchangeable for New Junior Subordinated
Debentures registered in the names of persons other than Cede & Co. only if
(i) DTC notifies the Company that it is unwilling or unable to continue as a
depositary for such global security and no successor depositary shall have
been appointed, or if at any time DTC ceases to be a "clearing agency"
registered under the Exchange Act, at a time when DTC is required to be so
registered to act as such depositary, (ii) the Company in its sole discretion
determines that such global security shall be so exchangeable or (iii) there
shall have occurred and be continuing a Debenture Event of Default. Any global
security that is exchangeable pursuant to the preceding sentence shall be
exchangeable for certificates registered in such names as DTC shall direct. It
is expected that such instructions will be based upon directions received by
DTC from its Participants with respect to ownership of beneficial interests in
such global security. In the event that New Junior Subordinated Debentures are
issued in certificated form, such New Junior Subordinated Debentures will be
in minimum denominations of $100,000 and integral multiples of $1,000 in
excess thereof and may be transferred or exchanged only in such minimum
denominations and in the manner and at the offices described below.
Payments on New Junior Subordinated Debentures represented by a global
security will be made to DTC, as the depositary for the New Junior
Subordinated Debentures. In the event New Junior Subordinated Debentures are
issued in certificated form, principal and interest will be payable, the
transfer of the New Junior Subordinated Debentures will be registrable, and
New Junior Subordinated Debentures will be exchangeable for New Junior
Subordinated Debentures of other denominations of a like aggregate principal
amount, at the corporate office of the Debenture Trustee in New York, New
York, or at the offices of any paying agent or transfer agent appointed by the
Company, provided that payment of interest may be made at the option of the
Company by check mailed to the address of the persons entitled thereto or by
wire transfer. In addition, if the New Junior Subordinated Debentures are
registered to a holder other than the Property Trustee or a nominee of DTC,
the record dates will be the immediately preceding November 15 and May 15,
respectively.
For a description of DTC and the terms of the depositary arrangements
relating to payments, transfers, voting rights, redemptions and other notices
and other matters, see "Description of Capital Securities--Form, Denomination,
Book-Entry Procedures and Transfer." If the New Junior Subordinated Debentures
are distributed to the holders of the Trust Securities upon the termination of
the Trust, the form, denomination, book-entry and transfer procedures with
respect to the Capital Securities as described under "Description of Capital
Securities--Form, Denomination, Book-Entry Procedures and Transfer," shall
apply to the New Junior Subordinated Debentures mutatis mutandis.
PAYMENT AND PAYING AGENTS
Payment of principal of (and any premium) and any interest on Junior
Subordinated Debentures will be made at the office of the Debenture Trustee in
The City of New York or at the office of such Paying Agent or Paying Agents as
the Company may designate from time to time, except that at the option of the
Company payment of any interest may be made, except in the case of Junior
Subordinated Debentures in global form, (i) by check mailed to the address of
the Person entitled thereto as such address shall appear in the register for
Junior Subordinated Debentures or (ii) by transfer to an account maintained by
the Person entitled thereto as specified in such register, provided that
proper transfer instructions have been received by the relevant record date.
Payment of any interest on any Junior Subordinated Debenture will be made to
the Person in whose name such Junior Subordinated Debenture is registered at
the close of business on the record date for such interest, except in the case
of defaulted interest. The Company may at any time designate additional Paying
Agents or rescind the designation of any Paying Agent; however, the Company
will at all times be required to maintain a Paying Agent in each place of
payment for the Junior Subordinated Debentures.
Any moneys deposited with the Debenture Trustee or any Paying Agent, or then
held by the Company in trust, for the payment of the principal of (and
premium, if any) or interest on any Junior Subordinated Debenture and
remaining unclaimed for two years after such principal (and premium, if any)
or interest has become due
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and payable shall, at the request of the Company, be repaid to the Company and
the holder of such Junior Subordinated Debenture shall thereafter look, as a
general unsecured creditor, only to the Company for payment thereof.
OPTION TO EXTEND INTEREST PAYMENT DATE
So long as no Debenture Event of Default has occurred and is continuing, the
Company has the right under the Indenture at any time during the term of the
Junior Subordinated Debentures to defer the payment of interest at any time or
from time to time for a period not exceeding 10 consecutive semi-annual
periods with respect to each Extension Period provided that no Extension
Period may end on a date other than an Interest Payment Date or extend beyond
the Stated Maturity or any earlier prepayment date. At the end of such
Extension Period, the Company must pay all interest then accrued and unpaid
(together with interest thereon at the annual rate of 7.83%, compounded semi-
annually, to the extent permitted by applicable law). During an Extension
Period, interest will continue to accrue and holders of Junior Subordinated
Debentures (and holders of the Capital Securities while Capital Securities are
outstanding) will be required to accrue interest income for United States
federal income tax purposes. See "Certain Federal Income Tax Consequences--
Interest Income and Original Issue Discount."
During any such Extension Period, the Company may not (i) declare or pay any
dividends or distributions on, or redeem, purchase, acquire, or make a
liquidation payment with respect to, any of the Company's capital stock or
(ii) make any payment of principal of or interest or premium, if any, on or
repay, repurchase or redeem any debt securities of the Company that rank pari
passu with or junior to the Junior Subordinated Debentures or (iii) make any
guarantee payments with respect to any guarantee by the Company of the debt
securities of any subsidiary of the Company if such guarantee ranks pari passu
with or junior to the Junior Subordinated Debentures (other than (a) dividends
or distributions in common stock of the Company, (b) any declaration of a
dividend in connection with the implementation of a stockholders' rights plan,
the issuance of capital stock under any such plan in the future, or the
redemption or repurchase of any such rights distributed pursuant thereto, (c)
payments under the Guarantee and (d) purchases of common stock related to the
issuance of common stock or rights under any of the Company's benefit plans
for its directors, officers, employees, consultants or advisors). Prior to the
termination of any such Extension Period, the Company may further extend such
Extension Period, provided that such extension does not cause such Extension
Period to exceed 10 consecutive semi-annual periods or to extend beyond the
Stated Maturity or any earlier prepayment date. At any time following the
termination of any Extension Period and the payment of all amounts then due,
the Company may elect to begin a new Extension Period, subject to the
foregoing requirements. No interest shall be due and payable during an
Extension Period, except at the end thereof. The Company must give the
Property Trustee, the Administrative Trustees and the Debenture Trustee notice
of its election of any Extension Period (or an extension thereof) at least
five Business Days prior to the earlier of (i) the next succeeding date the
Distributions on the Capital Securities would have been payable but for the
election to begin or extend such Extension Period or (ii) the date the
Administrative Trustees are required to give notice to any securities exchange
or other applicable self-regulatory organization or to holders of Capital
Securities of the record date or the date such Distributions are payable, but
in any event not fewer than five Business Days prior to such record date. An
Administrative Trustee shall give notice of the Company's election to begin or
extend an Extension Period to the holders of the Capital Securities. There is
no limitation on the number of times that the Company may elect to begin an
Extension Period.
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OPTIONAL PREPAYMENT
The Junior Subordinated Debentures are prepayable, in whole or in part, at
the option of the Company at any time on or after December 1, 2007 (the
"Initial Optional Prepayment Date"), at a prepayment price (the "Optional
Prepayment Price") equal to the percentage of the outstanding principal amount
of the Junior Subordinated Debentures specified below, plus, in each case,
accrued interest thereon to but excluding the date of prepayment if prepaid
during the 12-month period beginning on December 1 of the years indicated
below:
<TABLE>
<S> <C>
2007................................ 103.915%
2008................................ 103.524%
2009................................ 103.132%
2010................................ 102.741%
2011................................ 102.349%
2012................................ 101.958%
2013................................ 101.566%
2014................................ 101.174%
2015................................ 100.783%
2016................................ 100.391%
2017 and thereafter................. 100.000%
</TABLE>
The proceeds of any such prepayment will be used by the Property Trustee to
redeem a Like Amount of Trust Securities.
TAX EVENT OR INVESTMENT COMPANY EVENT PREPAYMENT
If a Tax Event or Investment Company Event shall occur and be continuing,
prior to the Initial Optional Prepayment Date, the Company may, at its option,
prepay the Junior Subordinated Debentures in whole (but not in part) at any
time within 90 days of the occurrence of such Tax Event of an Investment
Company Event at a prepayment price (the "Event Prepayment Price") equal to
the greater of (i) 100% of the principal amount of such Junior Subordinated
Debentures or (ii) as determined by the Quotation Agent (as defined below),
the sum of the present values of the Optional Prepayment Price with respect to
an optional prepayment of such Junior Subordinated Debentures on the Initial
Optional Prepayment Date, together with the present values of scheduled
payments of interest from the prepayment date to the Initial Optional
Prepayment Date (the "Term to Initial Optional Prepayment Date"), in each case
discounted to the prepayment date on a semi-annual basis (consisting of a 360-
day year of twelve 30-day months) at the Adjusted Treasury Rate, plus, in each
case, accrued interest thereon to but excluding the date of prepayment.
However, the Company may, at its option, prepay Junior Subordinated
Debentures, in whole but not in part, as a result of a Tax Event or an
Investment Company Event which occurs on or after the Initial Optional
Prepayment Date, at a prepayment price equal to the Optional Prepayment Price
that would be payable on optional prepayment of the Junior Subordinated
Debentures on the date of prepayment, which includes interest to the date of
prepayment.
Notice of any prepayment will be mailed at least 20 days but not more than
60 days before the redemption date to each holder of Junior Subordinated
Debentures to be prepaid at its registered address. Unless the Company
defaults in payment of the prepayment price, on or after the prepayment date
interest ceases to accrue on such Junior Subordinated Debentures called for
prepayment.
The proceeds of any such prepayment will be used by the Property Trustee to
redeem a Like Amount of Trust Securities.
If the Trust is required to pay any additional taxes, duties or other
governmental charges as a result of a Tax Event, the Company will reimburse
the Trust for such taxes, duties, or charges. The Company will also pay any
Additional Tax Sums on the Junior Subordinated Debentures.
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"Adjusted Treasury Rate" means, with respect to any prepayment date, the
Treasury Rate plus (i) 1.00% if such prepayment date occurs on or before
December 1, 1998 or (ii) 0.50% if such prepayment date occurs after December
1, 1998.
"Treasury Rate" means (i) the yield, under the heading which represents the
average for the immediately prior week, appearing in the most recently
published statistical release designated "H.15(519)" or any successor
publication which is published weekly by the Federal Reserve and which
establishes yields on actively traded United States Treasury securities
adjusted to constant maturity under the caption "Treasury Constant
Maturities," for the maturity corresponding to the Term to Initial Optional
Prepayment Date (if no maturity is within three months before or after the
Term to Initial Optional Prepayment Date, yields for the two published
maturities most closely corresponding to the Term to Initial Optional
Prepayment Date shall be determined and the Treasury Rate shall be
interpolated or extrapolated from such yields on a straight-line basis,
rounding to the nearest month) or (ii) if such release (or any successor
release) is not published during the week preceding the calculation date or
does not contain such yields, the rate per annum equal to the semi-annual
equivalent yield to maturity of the Comparable Treasury Issue, calculated
using a price for the Comparable Treasury Issue (expressed as a percentage of
its principal amount) equal to the Comparable Treasury Price for such
prepayment date. The Treasury Rate shall be calculated on the third Business
Day preceding the prepayment date.
"Comparable Treasury Issue" means with respect to any prepayment date the
United States Treasury security selected by the Quotation Agent as having a
maturity comparable to the Remaining Life 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
Life. If no United States Treasury security has a maturity which is within a
period from three months before to three months after December 1, 2007, the
two most closely corresponding United States Treasury securities shall be used
as the Comparable Treasury Issue, and the Treasury Rate shall be interpolated
or extrapolated on a straight-line basis, rounding to the nearest month using
such securities.
"Quotation Agent" means Morgan Stanley & Co. Incorporated and its
successors.
"Reference Treasury Dealer" means (i) Morgan Stanley & Co. Incorporated,
Lehman Brothers Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated and
J.P. Morgan Securities Inc. and their respective successors; provided,
however, that if any of the foregoing shall cease to be a primary U.S.
Government securities dealer in New York City (a "Primary Treasury Dealer"),
the Company shall substitute therefor another Primary Treasury Dealer; and
(ii) any other Primary Treasury Dealer selected by the Debenture Trustee after
consultation with the Company.
"Comparable Treasury Price" means, with respect to any prepayment date, (A)
the average of five Reference Treasury Dealer Quotations for such prepayment
date, after excluding the highest and lowest such Reference Treasury Dealer
Quotations, or (B) if the Debenture Trustee obtains fewer than three such
Reference Treasury Dealer Quotations, the average of all such Quotations.
"Liquidation Amount" means the stated amount of $1,000 per Capital Security.
"Reference Treasury Dealer Quotations" means, with respect to each Reference
Treasury Dealer and any prepayment date, the average, as determined by the
Debenture Trustee, 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 Debenture Trustee by such Reference Treasury Dealer at 5:00
p.m. on the third Business Day preceding such prepayment date.
"Additional Tax Sums" means the additional amounts as may be necessary in
order that the amount of Distributions then due and payable by the Trust on
the outstanding Capital Securities and Common Securities shall not be reduced
as a result of any additional taxes, duties and other governmental charges to
which the Trust has become subject as a result of a Tax Event (but not
including withholding taxes imposed on holders of Trust Securities).
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"Tax Event" means the receipt by the Trust of an opinion of counsel who
shall not be an officer or employee of the Company or its affiliates to the
effect that, as a result of any amendment to, or change (including any
announced prospective change) in, the laws (or any regulations thereunder) of
the United States or any political subdivision or taxing authority thereof or
therein, or as a result of any official administrative pronouncement or
judicial decision interpreting or applying such laws or regulations, which
amendment or change is effective or which pronouncement or decision is
announced on or after December 8, 1997, there is more than an insubstantial
risk that (i) the Trust is, or will be within 90 days after the date of such
opinion, subject to United States federal income tax with respect to income
received or accrued on the Junior Subordinated Debentures, (ii) interest
payable by the Company on the Junior Subordinated Debentures is not, or within
90 days after the date of such opinion, will not be, deductible by the
Company, in whole or in part, for United States federal income tax purposes or
(iii) the Trust is, or will be within 90 days after the date of such opinion,
subject to more than a de minimis amount of other taxes, duties, assessments
or other governmental charges.
"Investment Company Event" means the receipt by the Trust of an opinion of
counsel experienced in such matters to the effect that, as a result of the
occurrence of a change in law or regulation or change in interpretation or
application of law or regulation by any legislative body, court, governmental
agency or regulatory authority (a "Change in 1940 Act Law"), the Trust is or
will be considered an investment company that is required to be registered
under the Investment Company Act of 1940, as amended, which Change in 1940 Act
Law becomes effective on or after December 8, 1997.
RESTRICTIONS ON CERTAIN PAYMENTS
The Company also covenanted that it will not (i) declare or pay any
dividends or distributions on, or redeem, purchase, acquire, or make a
liquidation payment with respect to, any of the Company's capital stock or
(ii) make any payment of principal, interest or premium, if any, on or repay
or repurchase or redeem any debt securities of the Company that rank pari
passu with or junior to the Junior Subordinated Debentures or make any
guarantee payments with respect to any guarantee by the Company of the debt
securities of any subsidiary of the Company (including other Guarantees) if
such guarantee ranks on a parity with or junior to the Junior Subordinated
Debentures (other than (a) dividends or distributions in common stock of the
Company, (b) any declaration of a dividend in connection with the
implementation of a stockholder's rights plan, or the issuance of any capital
stock under any such plan in the future, or the redemption or repurchase of
any such rights pursuant thereto, (c) payments under the Guarantee and (d)
purchases of common stock related to the issuance of common stock or rights
under any of the Company's benefit plans for its directors, officers,
employees consultants or advisers) if at such time (i) there shall have
occurred any event of which the Company has actual knowledge that (a) with the
giving of notice or the lapse of time, or both, would constitute a "Debenture
Event of Default" and (b) in respect of which the Company shall not have taken
reasonable steps to cure, (ii) the Company shall be in default with respect to
its payment of any obligations under the Guarantee or (iii) the Company shall
have given notice of its election of an Extension Period as provided in the
Indenture and shall not have rescinded such notice, or such Extension Period,
or any extension thereof, shall be continuing.
MODIFICATION OF INDENTURE
From time to time, the Company and the Debenture Trustee may, without the
consent of the holders of the Junior Subordinated Debentures, amend, waive or
supplement the Indenture for specified purposes, including, among other
things, curing ambiguities, defects or inconsistencies (provided that any such
action does not materially adversely affect the interest of the holders of the
Junior Subordinated Debentures or the holders of Capital Securities so long as
they remain outstanding) and qualifying, or maintaining the qualification of,
the Indenture under the Trust Indenture Act.
The Indenture contains a provision permitting the Company and the Debenture
Trustee, with the consent of the holders of not less than a majority in
principal amount of the Junior Subordinated Debentures, to modify the rights
of the holders of Junior Subordinated Debentures, provided that no such
modification may (i) change the fixed maturity of any Junior Subordinated
Debentures, or reduce the rate or extend the time of payment of any
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interest thereon or on any overdue principal amount, or reduce the principal
amount thereof, or reduce any amount payable upon any redemption thereof, or
change the currency of payment of principal of or any interest thereon or on
any overdue principal amount, without the consent of the holder of each Junior
Subordinated Debenture so affected, (ii) reduce the aforesaid percentage of
Junior Subordinated Debentures, the holders of which are required to consent
to any such supplemental indenture, without the consent of the holders of all
Junior Subordinated Debentures then outstanding, (iii) modify certain
provisions of the Indenture relating to waiver of compliance with covenants,
waiver of defaults or modification of the Indenture, except to increase the
percentage of holders required for such waiver or modification, without the
consent of the holders of all Junior Subordinated Debentures then outstanding,
or (iv) modify the provisions of the Indenture with respect to the
subordination of outstanding Junior Subordinated Debentures in a manner
adverse to the holders thereof without the consent of the holder of each
Junior Subordinated Debentures so affected; provided further that, so long as
any of the Capital Securities remain outstanding, no such modification may be
made that adversely affects the holders of such Capital Securities in any
material respect, and no termination of the Indenture may occur, and no waiver
of any Event of Default or compliance with any covenant under the Indenture
may be effective, without the prior consent of the holders of at least a
majority of the aggregate Liquidation Amount of such Capital Securities unless
and until the principal of the underlying Junior Subordinated Debentures and
all accrued and unpaid interest thereon have been paid in full and certain
other conditions are satisfied.
In addition, the Company and the Debenture Trustee may execute, without the
consent of any holder of Junior Subordinated Debentures, any supplemental
indenture for the purpose of creating any new series of Junior Subordinated
Debentures.
DEBENTURE EVENTS OF DEFAULT
A Debenture Event of Default with respect to the Junior Subordinated
Debentures is defined in the Indenture as being: (a) default for 30 days in
payment of any installment of interest on the Junior Subordinated Debentures
(subject to the deferral of any due date in the case of an Extension Period);
(b) default in payment of any principal or premium, if any, on Junior
Subordinated Debentures; (c) default by the Company in performance in any
material respect of any of the covenants or agreements (other than covenants
to pay interest, principal and premium, which are subject to the foregoing
clauses (a) and (b)) in the Indenture specifically contained therein for the
benefit of the Junior Subordinated Debentures which shall not have been
remedied for a period of 90 days after written notice to the Company by the
Debenture Trustee or to the Company and the Debenture Trustee by the holders
of not less than 25% in principal amount of the Junior Subordinated Debentures
outstanding; or (d) certain events of bankruptcy, insolvency or reorganization
of the Company.
The Indenture provides that if a Debenture Event of Default under clause
(a), (b) or (c) above shall have occurred and be continuing (but, in the case
of clause (c), only if the Debenture Event of Default is with respect to less
than all Junior Subordinated Debentures outstanding under the Indenture),
either the Debenture Trustee or the holders of not less than 25% in principal
amount of the then outstanding Junior Subordinated Debentures (each series of
Junior Subordinated Debentures voting as a separate class in the case of
clauses (a) and (b) above, and all series voting as one class in the case of
clause (c) above) may declare the principal of all the Junior Subordinated
Debentures, together with any accrued interest, to be immediately due and
payable. Should the Debenture Trustee or holders of such Junior Subordinated
Debentures fail to make such declaration, the holders of at least 25% in
aggregate liquidation amount of the Capital Securities shall have such right.
The Indenture also provides that if a Debenture Event of Default under clause
(c) or (d) above shall have occurred and be continuing (but, in the case of
clause (c), only if the Debenture Event of Default is with respect to all
Junior Subordinated Debentures outstanding under the Indenture), either the
Debenture Trustee or the holders of not less than 25% in principal amount of
the then outstanding Junior Subordinated Debentures (all series voting as one
class) may declare the principal of all the Junior Subordinated Debentures,
together with any accrued interest, to be immediately due and payable. Should
the Debenture Trustee or holders of such Junior Subordinated Debentures fail
to make such declaration, the holders of at least 25% in aggregate liquidation
amount of the Capital Securities shall have such right. Upon certain
conditions, such declaration (including a declaration caused by a default in
the payment of principal or interest, the payment for which has subsequently
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been provided) may be annulled by the holders of at least a majority in
principal amount of the Junior Subordinated Debentures. Should the holders of
the Junior Subordinated Debentures fail to annul such declaration, the holders
of at least a majority in aggregate liquidation amount of the Capital
Securities shall have such right. In addition, past defaults may be waived by
the holders of a majority in principal amount of the Junior Subordinated
Debentures, except a default in the payment of principal of or interest on the
Junior Subordinated Debentures or in respect of a covenant or provision of the
Indenture which cannot be modified or amended without the consent of the
holder of each Junior Subordinated Debenture so affected. Should the holders
of the Junior Subordinated Debentures fail to waive such default, the holders
of a majority in aggregate liquidation amount of the Capital Securities shall
have such right.
The Indenture contains a provision entitling the Debenture Trustee, subject
to the duty of the Debenture Trustee during default to act with the required
standard of care, to be indemnified by the holders of Junior Subordinated
Debentures issued under the Indenture before proceeding to exercise any right
or power under the Indenture at the request of such holders. The Indenture
also provides that the holders of a majority in principal amount of the
outstanding Junior Subordinated Debentures issued thereunder may direct the
time, method and place of conducting any proceeding for any remedy available
to the Debenture Trustee, or exercising any trust or power conferred on the
Debenture Trustee.
The Indenture contains a covenant that the Company will file annually with
the Debenture Trustee a certificate as to the absence of any default or
specifying any default that exists.
ENFORCEMENT OF CERTAIN RIGHTS BY HOLDERS OF CAPITAL SECURITIES
If a Debenture Event of Default has occurred and is continuing and such
event is attributable to the failure of the Company to pay interest or
principal on the Junior Subordinated Debentures on the date such interest or
principal is otherwise payable, a holder of Capital Securities may institute a
legal proceeding directly against the Company for enforcement of payment to
such holder of the principal of or interest on such related Junior
Subordinated Debentures having a principal amount equal to the aggregate
Liquidation Amount of the related Capital Securities of such holder (a "Direct
Action"). The Company may not amend the Indenture to remove the foregoing
right to bring a Direct Action without the prior written consent of the
holders of all of the Capital Securities. If the right to bring a Direct
Action is removed, the Trust may become subject to reporting obligations under
the Securities Exchange Act of 1934, as amended. Notwithstanding any payments
made to a holder of Capital Securities by the Company in connection with a
Direct Action, the Company shall remain obligated to pay the principal of or
interest on the Junior Subordinated Debentures, and the Company shall be
subrogated to the rights of the holder of such Capital Securities with respect
to payments on the Capital Securities to the extent of any payments made by
the Company to such holder in any Direct Action.
The holders of the Capital Securities would not be able to exercise directly
any remedies, other than those set forth in the preceding paragraph, available
to the holders of the Junior Subordinated Debentures unless there shall have
been an Event of Default under the Trust Agreement. See "Description of
Capital Securities--Events of Default; Notice."
CONSOLIDATION, MERGER, SALE OF ASSETS AND OTHER TRANSACTIONS
The Indenture provides that the Company may not merge or consolidate or sell
or convey all or substantially all of its assets unless (i) the successor
entity (if other than the Company) is a U.S. entity that assumes the Company's
obligations under such Indenture and on the Junior Subordinated Debentures
issued under such Indenture, and, after giving effect to such transaction, the
Company or the successor would not be in default under such Indenture; and
(ii) certain other conditions as prescribed in the Indenture are met.
The provisions of the Indenture do not afford holders of the Junior
Subordinated Debentures protection in the event of a highly leveraged or other
transaction involving the Company that may adversely affect holders of the
Junior Subordinated Debentures.
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SATISFACTION AND DISCHARGE
The Indenture provides that when, among other things, all Junior
Subordinated Debentures not previously delivered to the Debenture Trustee for
cancellation (i) have become due and payable or (ii) will become due and
payable at their Stated Maturity within one year, and the Company deposits or
causes to be deposited with the Debenture Trustee funds, in trust, for the
purpose and in an amount sufficient to pay and discharge the entire
indebtedness on the Junior Subordinated Debentures not previously delivered to
the Debenture Trustee for cancellation, for the principal (and premium, if
any) and interest to the date of the deposit or to the Stated Maturity, as the
case may be, then the Indenture will cease to be of further effect (except as
to remaining rights of registration of transfer, conversion, substitution and
exchange, the rights and obligations of the Debenture Trustee, the Company's
obligations to pay all other sums due pursuant to the Indenture and to provide
the officers' certificates and opinions of counsel described therein), and the
Company will be deemed to have satisfied and discharged the Indenture.
SUBORDINATION
In the Indenture, the Company has covenanted and agreed that the obligations
of the Company to make any payment on account of the principal of and interest
on the Junior Subordinated Debentures will be subordinate and junior in right
of payment to the Company's obligations to the holders of Senior Indebtedness
of the Company to the extent described in the next two paragraphs. Senior
Indebtedness of the Company with respect to the Junior Subordinated Debentures
will include the existing and future senior notes, senior subordinated notes
and subordinated notes of the Company and means (i) any indebtedness of the
Company for borrowed or purchased money, whether or not evidenced by bonds,
debentures, notes or other written instruments, (ii) obligations under letters
of credit, (iii) any indebtedness or other obligations of the Company with
respect to commodity contracts, interest rate and currency swap agreements,
cap, floor and collar agreements, currency spot and forward contracts, and
other similar agreements or arrangements designed to protect against
fluctuations in currency exchange or interest rates, and (iv) any guarantees,
endorsements (other than by endorsement of negotiable instruments for
collection in the ordinary course of business) or other similar contingent
obligations in respect of obligations of others of a type described in (i),
(ii) or (iii) above, whether or not such obligation is classified as a
liability on a balance sheet prepared in accordance with generally accepted
accounting principles, in each case listed in (i), (ii), (iii) and (iv) above,
whether outstanding on the date of execution of the Indenture or thereafter
incurred, other than obligations "ranking on a parity" with the Junior
Subordinated Debentures or "ranking junior" to the Junior Subordinated
Debentures (as those terms are defined in the Indenture); provided, however,
that the Junior Subordinated Debentures will not be subordinate and junior in
right of payment to trade creditors or any indebtedness of the Company to any
subsidiaries. As of December 31, 1997, there was approximately $423.2 million
of Senior Indebtedness of the Company outstanding. The Indenture does not
limit the amount of future increase in Senior Indebtedness of the Company or
any indebtedness of its subsidiaries or affiliates. The Company expects from
time to time to issue additional indebtedness constituting Senior
Indebtedness.
No payments on account of principal (or premium, if any) or interest, if
any, in respect of the Junior Subordinated Debentures may be made if there
shall have occurred and be continuing a default in any payment with respect to
Senior Indebtedness, or an event of default with respect to any Senior
Indebtedness resulting in the acceleration of the maturity thereof, or if any
judicial proceeding shall be pending with respect to any such default.
In the case of any insolvency, receivership, conservatorship,
reorganization, readjustment of debt, marshaling of assets and liabilities or
similar proceedings or any liquidation or winding-up of or relating to the
Company as a whole, whether voluntary or involuntary, all obligations of the
Company to holders of Senior Indebtedness of the Company shall be entitled to
be paid in full before any payment shall be made on account of the principal
of or interest on the Junior Subordinated Debentures. In the event of any such
proceeding, after payment in full of all sums owing with respect to Senior
Indebtedness of the Company, the holders of the Junior Subordinated
Debentures, together with the holders of any obligations of the Company
ranking on a parity with
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the Junior Subordinated Debentures, shall be entitled to be paid from the
remaining assets of the Company the amount at the time due and owing on
account of unpaid principal of and interest on the Junior Subordinated
Debentures before any payment or other distribution, whether in cash, property
or otherwise, shall be made on account of any capital stock or any obligations
of the Company ranking junior to the Junior Subordinated Debentures. By reason
of such subordination, in the event of the insolvency of the Company, holders
of Senior Indebtedness of the Company may receive more, ratably, and holders
of the Junior Subordinated Debentures having a claim pursuant to the Junior
Subordinated Debentures may receive less, ratably, than the other creditors of
the Company. Such subordination will not prevent the occurrence of any Event
of Default in respect of the Junior Subordinated Debentures.
RESTRICTIONS ON TRANSFER
The New Junior Subordinated Debentures will be issued, and may be
transferred only, in minimum denominations of not less than $100,000 and
multiples of $1,000 in excess thereof. Any transfer, sale or other disposition
of Junior Subordinated Debentures in a denomination of less than $100,000
shall be deemed to be void and of no legal effect whatsoever. Any such
transferee shall be deemed not to be the holder of such Junior Subordinated
Debentures for any purpose, including but not limited to the receipt of
payments on such Junior Subordinated Debentures, and such transferee shall be
deemed to have no interest whatsoever in such Junior Subordinated Debentures.
GOVERNING LAW
The Indenture is and the New Junior Subordinated Debentures will be governed
by and construed in accordance with the laws of the State of New York, without
regard to conflicts of law principles.
INFORMATION CONCERNING THE DEBENTURE TRUSTEE
The Debenture Trustee is subject to all the duties and responsibilities
specified with respect to an indenture trustee under the Trust Indenture Act.
Subject to such provisions, the Debenture Trustee is under no obligation to
exercise any of the powers vested in it by the Indenture at the request of any
holder of Junior Subordinated Debentures, unless offered reasonable indemnity
by such holder against the costs, expenses and liabilities which might be
incurred thereby. The Debenture Trustee is not required to expend or risk its
own funds or otherwise incur personal financial liability in the performance
of its duties if the Debenture Trustee reasonably believes that repayment or
adequate indemnity is not reasonably assured to it.
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DESCRIPTION OF NEW GUARANTEE
The Old Guarantee was executed and delivered by the Company concurrently
with the issuance by the Trust of the Old Capital Securities for the benefit
of the holders from time to time of the Old Capital Securities. In the event
the Exchange Offer is consummated, the Company will exchange the New Guarantee
for the Old Guarantee for the benefit of the holders from time to time of the
New Capital Securities. The New Guarantee Agreement has been qualified under
the Trust Indenture Act. The form and terms of the New Guarantee are identical
in all material respects to the form and terms of the Old Guarantee, except
that the New Guarantee has been registered under the Securities Act.
Accordingly, as the context may require, unless expressly stated otherwise,
"Guarantee" means the Old Guarantee and, in the event the Exchange Offer is
consummated, the New Guarantee. This summary of certain terms and provisions
of the Old Guarantee Agreement and the New Guarantee Agreement does not
purport to be complete and is subject to, and qualified in its entirety by
reference to, all of the provisions of the Old Guarantee Agreement and the New
Guarantee Agreement, including the definitions therein of certain terms, and
the Trust Indenture Act. The Chase Manhattan Bank will act as Guarantee
Trustee and will hold the New Guarantee for the benefit of the holders of all
Capital Securities.
GENERAL
Under the New Guarantee, the Company will irrevocably agree (and under the
Old Guarantee has agreed) to pay in full on a subordinated basis, to the
extent set forth herein, the Guarantee Payments (as defined below) to the
holders of all Capital Securities, as and when due, regardless of any defense,
right of set-off or counterclaim that the Trust may have or assert other than
the defense of payment. The following payments with respect to the Capital
Securities, to the extent not paid by or on behalf of the Trust (the
"Guarantee Payments"), will be subject to the Guarantee: (i) any accumulated
and unpaid Distributions required to be paid on the Capital Securities, to the
extent that the Trust has funds on hand available therefor at such time, (ii)
the applicable Redemption Price with respect to Capital Securities called for
redemption, to the extent that the Trust has funds on hand available therefor
at such time and (iii) upon a voluntary or involuntary termination,
dissolution, winding-up or liquidation of the Trust (unless the Junior
Subordinated Debentures are distributed to holders of the Capital Securities),
the lesser of (a) the aggregate of the Liquidation Amount plus accumulated and
unpaid Distributions on the Capital Securities to the date of payment, to the
extent that the Trust has funds on hand available therefor at such time, and
(b) the amount of assets of the Trust remaining available for distribution to
holders of Capital Securities in liquidation of the Trust. The Company's
obligation to make a Guarantee Payment may be satisfied by direct payment of
the required amounts by the Company to the holders of the Capital Securities
or by causing the Trust to pay such amounts to such holders.
The Guarantee is an irrevocable guarantee on a subordinated basis of the
Trust's obligations under the Capital Securities, but will apply only to the
extent that the Trust has funds legally available to make such payments, and
is not a guarantee of collection. If the Company does not make interest
payments on the Junior Subordinated Debentures held by the Trust, the Trust
will not be able to pay Distributions on the Capital Securities and will not
have funds legally available therefor. In such event, holders of the Capital
Securities would not be able to rely on the Guarantee for such payments.
The Guarantee will rank subordinate and junior in right of payment to all
Senior Indebtedness of the Company, other than any liabilities which expressly
by their terms are made pari passu with or subordinate to the obligations of
the Company under the Guarantee, and will rank pari passu with (i) the Junior
Subordinated Debentures and (ii) all other guarantees, if any, to be issued by
the Company with respect to capital securities to be issued by any other
trusts established by the Company ("Other Guarantees"). See "--Status of the
Guarantee." Because the Company is a holding company, the right of the Company
to participate in any distribution of assets of any subsidiary upon such
subsidiary's liquidation or reorganization or otherwise (and thus the ability
of holders of Capital Securities to benefit indirectly from such
distribution), is subject to the prior claims of creditors of that subsidiary,
except to the extent the Company may itself be recognized as a creditor of
that subsidiary. Claims of the Trust, as the holder of the Guarantee and the
Junior Subordinated Debentures, will
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be effectively subordinated to the claims of creditors of the Company's
subsidiaries, including trade creditors, debt holders, secured creditors,
taxing authorities, guarantee holders and any preferred stockholders.
Accordingly, the Company's obligations under the Guarantee will be effectively
subordinated to all existing and future liabilities of the Company's
subsidiaries, and claimants should look only to the assets of the Company for
payments thereunder. The Guarantee does not limit the incurrence or issuance
of other secured or unsecured debt of the Company or any subsidiaries or
affiliates of the Company, including other securities that are pari passu with
or senior to the Capital Securities, the Junior Subordinated Debentures or the
Guarantee.
The Company has, through the Guarantee, the Guarantee Agreement, the Trust
Agreement, the Junior Subordinated Debentures, the Indenture and the Expense
Agreement, taken together, fully, irrevocably and unconditionally guaranteed
on a subordinated basis all of the Trust's obligations under the Capital
Securities. No single document standing alone or operating in conjunction with
fewer than all of the other documents constitutes such guarantee. It is only
the combined operation of these documents that has the effect of providing a
full, irrevocable and unconditional guarantee of the Trust's obligations under
the Capital Securities. See "Relationship Among the Capital Securities, the
Junior Subordinated Debentures and the Guarantee."
STATUS OF THE GUARANTEE
The Guarantee constitutes an unsecured obligation of the Company and ranks
subordinate and junior in right of payment to all liabilities of the Company
(including obligations under the Junior Subordinated Debentures), other than
any liabilities which expressly by their terms are made pari passu with or
subordinate to the obligations of the Company under the Guarantee.
The Guarantee ranks pari passu with all Other Guarantees issued by the
Company. The Guarantee constitutes a guarantee of payment and not of
collection (i.e., the guaranteed party may institute a legal proceeding
directly against the Company to enforce its rights under the Guarantee without
first instituting a legal proceeding against any other person or entity). The
Guarantee is held for the benefit of the holders of all Capital Securities.
The Guarantee will not be discharged except by payment of the Guarantee
Payments in full to the extent not paid by the Trust or upon distribution of
the Junior Subordinated Debentures to the holders of the Capital Securities.
The Guarantee does not place a limitation on the amount of additional Senior
Indebtedness that may be incurred by the Company. The Company expects from
time to time to incur additional indebtedness constituting Senior
Indebtedness.
AMENDMENTS AND ASSIGNMENT
Except with respect to any changes which do not adversely affect the rights
of holders of the Capital Securities in any material respect (in which case no
vote will be required), the Guarantee Agreement may not be amended without the
prior approval of the holders of not less than a majority of the aggregate
Liquidation Amount of outstanding Capital Securities. The manner of obtaining
any such approval will be as set forth under "Description of Capital
Securities--Voting Rights; Amendment of the Trust Agreement." All guarantees
and agreements contained in the Guarantee Agreement shall bind the successors,
assigns, receivers, trustees and representatives of the Company and shall
inure to the benefit of the holders of the Capital Securities then
outstanding.
EVENTS OF DEFAULT
An event of default under the Guarantee Agreement will occur upon the
failure of the Company to perform any of its payment obligations or, if the
Company shall have received notice, and shall not have cured such failure
within 60 days of receipt of such notice, its non-payment obligations
thereunder. The holders of not less than a majority in aggregate Liquidation
Amount of the Capital Securities have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Guarantee
Trustee in respect of the Guarantee or to direct the exercise of any trust or
power conferred upon the Guarantee Trustee under the Guarantee Agreement;
provided, however that the Guarantee Trustee may decline to follow such
direction under
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certain circumstances, including if the directed action would be illegal or if
the action would be unduly prejudicial to the rights of holders not party to
such direction.
To the extent permitted by law, any holder of the Capital Securities may
institute a legal proceeding directly against the Company to enforce its
rights under the Guarantee without first instituting a legal proceeding
against the Trust, the Guarantee Trustee or any other person or entity.
The Company, as guarantor, is required to file annually with the Guarantee
Trustee a certificate as to whether or not the Company is in compliance with
all the conditions and covenants applicable to it under the Guarantee
Agreement.
CONSOLIDATION, MERGER, SALE OF ASSETS AND OTHER TRANSACTIONS
The Guarantee Agreement provides that the Company shall not consolidate with
or merge into any other entity or convey, transfer or lease all or
substantially all of its properties and assets to any other entity, and no
entity shall consolidate with or merge into the Company or convey, transfer or
lease all or substantially all of its properties and assets to the Company,
unless (i) either the Company shall be the continuing corporation or the
successor entity is organized under the laws of the United States or any state
or the District of Columbia and such successor entity expressly assumes the
Company's obligations on the Guarantee; (ii) immediately after giving effect
thereto, no event of default under the Guarantee Agreement and no event which,
after notice or lapse of time or both, would become an event of default under
the Guarantee Agreement, shall have happened and be continuing; and (iii)
certain other conditions as prescribed in the Guarantee Agreement are met.
INFORMATION CONCERNING THE GUARANTEE TRUSTEE
The Guarantee Trustee, other than during the occurrence and continuance of a
default by the Company in performance of the Guarantee, undertakes to perform
only such duties as are specifically set forth in the Guarantee Agreement and,
after default with respect to the Guarantee, must exercise the same degree of
care and skill as a prudent person would exercise or use in the conduct of his
or her own affairs. Subject to this provision, the Guarantee Trustee is under
no obligation to exercise any of the powers vested in it by the Guarantee
Agreement at the request of any holder of the Capital Securities unless it is
offered reasonable indemnity against the costs, expenses and liabilities that
might be incurred thereby.
TERMINATION OF THE GUARANTEE
The Guarantee will terminate and be of no further force and effect upon full
payment of the applicable Redemption Price of the Capital Securities, upon
full payment of the amounts payable upon liquidation of the Trust or upon
distribution of Junior Subordinated Debentures to the holders of the Capital
Securities. The Guarantee will continue to be effective or will be reinstated,
as the case may be, if at any time any holder of the Capital Securities must
restore payment of any sums paid under the Capital Securities or the
Guarantee.
GOVERNING LAW
The Old Guarantee is and the New Guarantee will be governed by and construed
in accordance with the laws of the State of New York, without regard to
conflicts of laws principles.
THE EXPENSE AGREEMENT
Pursuant to the Expense Agreement, the Company has irrevocably and
unconditionally guaranteed to each person or entity to whom the Trust becomes
indebted or liable, the full payment of any costs, expenses or liabilities of
the Trust, other than obligations of the Trust to pay to the holders of any
Trust Securities or other similar interests in the Trust of the amounts due
such holders pursuant to the terms of the Trust Securities or such other
similar interests, as the case may be.
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DESCRIPTION OF OLD SECURITIES
The forms and terms of the Old Securities are identical in all material
respects to the forms and terms of the New Securities, except that (i) the Old
Securities have not been registered under the Securities Act, are subject to
certain restrictions on transfer and are entitled to certain rights under the
Registration Rights Agreement (which rights will terminate upon consummation
of the Exchange Offer, except under limited circumstances); (ii) the New
Capital Securities will not provide for any increase in the Distribution rate
thereon; and (iii) the New Junior Subordinated Debentures will not provide for
any increase in the interest rate thereon. The Old Securities provide that, in
the event that if a registration statement relating to the Exchange Offer has
not been filed on or by May 7, 1998 and declared effective by June 6, 1998,
then interest will accrue (in addition to the stated interest rate on the
Junior Subordinated Debentures) at the rate of 0.25% per annum on the
principal amount of the Junior Subordinated Debentures and Distributions will
accumulate (in addition to the stated Distribution rate on the Capital
Securities) at the rate of 0.25% per annum on the Liquidation Amount of the
Capital Securities, for the period from the occurrence of such event until
such time as the Exchange Offer is consummated or any required Shelf
Registration Statement is effective. The New Securities are not, and upon
consummation of the Exchange Offer the Old Securities will not be, entitled to
any such additional interest or Distributions. Accordingly, holders of Old
Capital Securities should review the information set forth under "Risk
Factors--Certain Consequences of a Failure to Exchange Old Capital Securities"
and "Description of Securities."
RELATIONSHIP AMONG THE NEW CAPITAL SECURITIES, THE NEW JUNIORSUBORDINATED
DEBENTURES, THE NEW GUARANTEE AND CERTAINUNDERTAKINGS UNDER THE TRUST
AGREEMENT
FULL AND UNCONDITIONAL GUARANTEE
Payments of Distributions and other amounts due on the New Capital
Securities (to the extent the Trust has funds legally available for the
payment of such Distributions) will be irrevocably guaranteed by the Company
as and to the extent set forth under "--Description of Guarantee." Taken
together, the Company's obligations under the New Junior Subordinated
Debentures, the Indenture, the Trust Agreement, the Expense Agreement, the New
Guarantee Agreement and the New Guarantee provide, in the aggregate, a full,
irrevocable and unconditional guarantee of payments of Distributions and other
amounts due on the Capital Securities. No single document standing alone or
operating in conjunction with fewer than all of the other documents
constitutes such guarantee. It is only the combined operation of these
documents that has the effect of providing a full, irrevocable and
unconditional guarantee of the Trust's obligations under the Capital
Securities. If and to the extent that the Company does not make payments on
the Junior Subordinated Debentures, the Trust will not pay Distributions or
other amounts due on the Capital Securities. The Guarantee does not cover
payment of Distributions when the Trust does not have sufficient funds to pay
such Distributions. In such event, the remedy of a holder of Capital
Securities is to institute a Direct Action. The obligations of the Company
under the Guarantee are subordinate and junior in right of payment to all
Senior Indebtedness.
SUFFICIENCY OF PAYMENTS
As long as payments of interest and other payments are made when due on the
Junior Subordinated Debentures, such payments will be sufficient to cover
Distributions and other payments due on the Capital Securities, primarily
because (i) the aggregate principal amount of the Junior Subordinated
Debentures will be equal to the sum of the aggregate Liquidation Amount or
Redemption Price, as applicable, of the Capital Securities and Common
Securities; (ii) the interest rate and interest and other payment dates on the
Junior Subordinated Debentures will match the Distribution rate and
Distribution and other payment dates for the Trust Securities; (iii) under the
Expense Agreement, the Company shall pay for all and any costs, expenses and
liabilities of the Trust except the Trust's obligations to holders of Trust
Securities under such Trust Securities; and (iv) the Trust Agreement further
provides that the Trust will not engage in any activity that is not consistent
with the limited purposes thereof.
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ENFORCEMENT RIGHTS OF HOLDERS OF CAPITAL SECURITIES
A holder of any Capital Security may institute a legal proceeding directly
against the Company to enforce its rights under the Guarantee without first
instituting a legal proceeding against the Guarantee Trustee, the Trust or any
other person or entity.
A default or event of default under any Senior Indebtedness would not
constitute a default or Event of Default under the Trust Agreement. However,
in the event of payment defaults under, or acceleration of, Senior
Indebtedness, the subordination provisions of the Indenture provide that no
payments may be made in respect of the Junior Subordinated Debentures until
such Senior Indebtedness has been paid in full or any payment default
thereunder has been cured or waived. Failure to make required payments on
Junior Subordinated Debentures would constitute an Event of Default under the
Trust Agreement.
LIMITED PURPOSES OF THE TRUST
The Capital Securities evidence an undivided beneficial interest in the
assets of the Trust, and the Trust exists for the exclusive purposes of
issuing and selling the Trust Securities, using the proceeds from the sale of
the Common Securities and Old Capital Securities to acquire the Old Junior
Subordinated Debentures and exchanging the Old Junior Subordinated Debentures
for New Junior Subordinated Debentures in the Exchange Offer pursuant to the
Indenture, and engaging in only those other activities necessary, convenient
or incidental thereto (such as registering the transfer of Capital
Securities). A principal difference between the rights of a holder of a
Capital Security and a holder of a Junior Subordinated Debenture is that a
holder of a Junior Subordinated Debenture is entitled to receive from the
Company the principal amount of and interest accrued on Junior Subordinated
Debentures held, while a holder of Capital Securities is entitled to receive
Distributions from the Trust (or from the Company under the Guarantee) if and
to the extent the Trust has funds available for the payment of such
Distributions.
RIGHTS UPON TERMINATION
Upon any voluntary or involuntary termination, winding-up or liquidation of
the Trust involving the liquidation of the Junior Subordinated Debentures,
after satisfaction of liabilities to creditors as required by applicable law,
the holders of the Trust Securities will be entitled to receive, out of assets
held by the Trust, the Liquidation Distribution in cash. See "Description of
Securities--Description of Capital Securities--Liquidation of the Trust and
Distribution of Junior Subordinated Debentures." Upon any voluntary or
involuntary liquidation or bankruptcy of the Company, the Property Trustee, as
holder of the Junior Subordinated Debentures, would be a subordinated creditor
of the Company, subordinated in right of payment to all Senior Indebtedness as
set forth in the Indenture, but entitled to receive payment in full of
principal and interest, before any stockholders of the Company receive
payments or distributions. Since the Company is the guarantor under the
Guarantee and has agreed under the Expense Agreement to pay for all costs,
expenses and liabilities of the Trust (other than the Trust's obligations to
the holders of its Trust Securities), the positions of a holder of Capital
Securities and a holder of Junior Subordinated Debentures relative to other
creditors and to stockholders of the Company in the event of liquidation or
bankruptcy of the Company are expected to be substantially the same.
CERTAIN FEDERAL INCOME TAX CONSEQUENCES
The following is a summary of the principal United States federal income tax
consequences of the purchase, ownership and disposition of Capital Securities.
The statements of law and legal conclusions set forth in this summary
regarding the tax consequences to the beneficial owners of Capital Securities
(the "Securityholders") represent the opinion of McGuire, Woods, Battle &
Boothe LLP, special tax counsel to the Company and the Trust. This summary and
the tax opinion of counsel only address the tax consequences to a person that
acquires Capital Securities in their original issue at their original offering
price. This summary does not address all tax consequences that may be
applicable to a Securityholder, nor does it address the tax consequences to
(i) persons that may be subject to special treatment under United States
federal income tax law, such as banks, insurance
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companies, thrift institutions, regulated investment companies, real estate
investment trusts, tax-exempt organizations and dealers in securities or
currencies, (ii) persons that will hold Capital Securities as part of a
position in a "straddle" or as part of a "hedging," "conversion" or other
integrated investment transaction for federal income tax purposes, (iii)
except with respect to the discussion under the caption "United States Alien
Securityholders," persons whose functional currency is not the United States
dollar or (iv) persons that do not hold Capital Securities as capital assets.
Further, it does not include any description of the tax laws of any state or
local government that may be applicable to the Capital Securities.
This summary is based upon the Internal Revenue Code of 1986, as amended
(the "Code"), Treasury regulations, Internal Revenue Service (the "IRS")
rulings and pronouncements and judicial decisions now in effect, all of which
are subject to change at any time. Such changes may be applied retroactively
in a manner that could cause the tax consequences to vary substantially from
the consequences described below, possibly adversely affecting a beneficial
owner of Capital Securities. See "--Possible Tax Law Changes."
The authorities on which this summary is based (including authorities
distinguishing debt from equity) are subject to various interpretations, and
it is therefore possible that the federal income tax treatment of the Capital
Securities may differ from the treatment described below. No ruling has been
received from the IRS regarding the tax consequences of the Capital
Securities. Counsel's opinion regarding such tax consequences represents only
counsel's best legal judgment based on current authorities and is not binding
on the IRS or the courts.
PROSPECTIVE INVESTORS ARE ADVISED TO CONSULT WITH THEIR OWN TAX ADVISORS IN
LIGHT OF THEIR OWN PARTICULAR CIRCUMSTANCES AS TO THE FEDERAL TAX CONSEQUENCES
OF THE PURCHASE, OWNERSHIP DISPOSITION AND EXCHANGE OF CAPITAL SECURITIES, AS
WELL AS THE EFFECT OF ANY STATE, LOCAL OR FOREIGN TAX LAWS.
EXCHANGE OF CAPITAL SECURITIES
The exchange of Old Capital Securities for New Capital Securities should not
be a taxable event to Securityholders for United States federal income tax
purposes. The exchange of Old Capital Securities for New Capital Securities
pursuant to the Exchange Offer should not be treated as an "exchange" for
United States federal income tax purposes because the New Capital Securities
should not be considered to differ materially in kind or extent from the Old
Capital Securities and because the exchange will occur by operation of the
terms of the Old Capital Securities. If however, the exchange of the Old
Capital Securities for the New Capital Securities were treated as an exchange
for United States federal income tax purposes, such exchange should constitute
a recapitalization for federal income tax purposes. Accordingly, the New
Capital Securities should have the same issue price as the Old Capital
Securities, and a Securityholder should have the same adjusted tax basis and
holding period in the New Capital Securities as the Securityholder had in the
Old Capital Securities immediately before the Exchange.
CLASSIFICATION OF THE JUNIOR SUBORDINATED DEBENTURES
In connection with the issuance of the Capital Securities, McGuire, Woods,
Battle & Boothe LLP will render its opinion to the effect that, under then-
current law and assuming compliance with the Indenture, and based on certain
facts and assumptions contained in such opinion, the Junior Subordinated
Debentures held by the Trust will be classified for United States federal
income tax purposes as indebtedness of the Company.
CLASSIFICATION OF THE TRUST
In the opinion of McGuire, Woods, Battle & Boothe LLP, under current law and
assuming compliance with the terms of the Trust Agreement, the Trust will be
classified as a grantor trust and not as an association taxable as a
corporation for United States federal income tax purposes. As a result, each
Securityholder will be treated as owning an undivided beneficial interest in
the Junior Subordinated Debentures. Accordingly, each Securityholder will be
required to include in its gross income its pro rata share of the interest
income, including original issue discount, paid or accrued with respect to the
Junior Subordinated Debentures whether or not cash
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is actually distributed to the Securityholders. See "--Interest Income and
Original Issue Discount." No amount included in income with respect to the
Capital Securities will be eligible for the dividends-received deduction.
INTEREST INCOME AND ORIGINAL ISSUE DISCOUNT
Except as described below, the allocable share of stated interest on the
Junior Subordinated Debentures will be taxable to a Securityholder as ordinary
income. A "remote" contingency that stated interest will not be timely paid
will be ignored in determining whether a debt instrument is issued with
original issue discount ("OID"). The Company believes that the likelihood of
its exercising its option to defer payments of interest on the Junior
Subordinated Debentures is remote since exercising that option would prevent
the Company and its subsidiaries from declaring dividends on any of the
Company's capital stock. Based on the foregoing, the Company intends to take
the position, based on the advice of its counsel, that the Junior Subordinated
Debentures will not be considered to be issued with OID at the time of their
original issuance and, accordingly, stated interest on the Junior Subordinated
Debentures generally will be taxable to a Securityholder as ordinary income at
the time it is paid or accrued in accordance with such Securityholder's method
of accounting for tax purposes.
If the Company should actually exercise its option to defer any payment of
interest, the Junior Subordinated Debentures would at that time be treated as
issued with OID, and all stated interest on the Junior Subordinated Debentures
would thereafter be treated as OID as long as the Junior Subordinated
Debentures remained outstanding. In such event, all of a Securityholder's
taxable interest income with respect to the Junior Subordinated Debentures
would be accounted for as OID on an economic accrual basis regardless of such
Securityholder's method of tax accounting, and actual payments of stated
interest would not be reported as taxable income. Consequently, a
Securityholder would be required to include in gross income OID even though
the Company would not make any cash payments during an Extension Period.
If the option to defer the payment of interest were determined not to be
"remote", the Junior Subordinated Debentures would be treated as having been
originally issued with OID. In such event, all of the Securityholder's taxable
interest income with respect to the Junior Subordinated Debentures would be
accounted for on an economic accrual basis regardless of such Securityholder's
method of tax accounting, and actual distributions of stated interest would
not be reported as taxable income.
Treasury regulations concerning OID have not been addressed in any rulings
or other interpretations by the IRS, and it is possible that the IRS could
take a position contrary to the interpretation herein.
DISTRIBUTION OF JUNIOR SUBORDINATED DEBENTURES TO HOLDERS OF CAPITAL
SECURITIES
A distribution by the Trust of the Junior Subordinated Debentures as
described under the caption "Description of Capital Securities--Liquidation of
the Trust and Distribution of Junior Subordinated
Debentures" is conditioned on receipt by the Company of an opinion of counsel
to the effect that such distribution would be a non-taxable event to
Securityholders for United States federal income tax purposes. Under current
law, such a distribution will be non-taxable and will result in the
Securityholder receiving directly its pro rata share of the Junior
Subordinated Debentures previously held indirectly through the Trust, with a
holding period and aggregate tax basis equal to the holding period and
aggregate tax basis such Securityholder had in its Capital Securities before
such distribution. A Securityholder will account for interest in respect of
Junior Subordinated Debentures received from the Trust in the manner described
above under "--Interest Income and Original Issue Discount."
SALES OR REDEMPTION OF CAPITAL SECURITIES
Upon a sale (including redemption) of Capital Securities, a Securityholder
will recognize gain or loss equal to the difference between its adjusted tax
basis in the Capital Securities and the amount realized on the sale of such
Capital Securities (excluding any amount attributable to any accrued interest
with respect to such Securityholder's pro rata share of the Junior
Subordinated Debentures not previously included in income, which will be
taxable as ordinary income). Provided that the Company does not exercise its
option to defer payment of
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interest on the Junior Subordinated Debentures, and the Capital Securities are
not considered to be issued with OID, a Securityholder's adjusted tax basis in
the Capital Securities generally will be its initial purchase price. If the
Junior Subordinated Debentures are deemed to be issued with OID as a result of
the Company's deferral of any interest payment, a Securityholder's tax basis
in the Capital Securities generally will be its initial purchase price,
increased by OID previously includable in such Securityholder's gross income
to the date of disposition and decreased by distributions or other payments
received on the Capital Securities since and including the commencement date
of the first Extension Period. Such gain or loss generally will be a capital
gain or loss and generally will be a long-term capital gain or loss if the
Capital Security has been held for more than 12 months but no more than 18
months, and long-term capital gain or loss if the Capital Security has been
held for more than 18 months. Under the Taxpayer Relief Act of 1997,
individuals are subject to a maximum long-term capital gain rate of 20% and a
maximum mid-term capital gain rate or 28% on the sale of certain investments
such as the Capital Securities.
Should the Company exercise its option to defer any payment of interest on
the Junior Subordinated Debentures, the Capital Securities may trade at a
price that does not accurately reflect the value of accrued but unpaid
interest with respect to the underlying Junior Subordinated Debentures. As a
result, and because a Securityholder will be required to include in income
accrued but unpaid interest on Junior Subordinated Debentures and to add such
amount to its adjusted tax basis, such Securityholder may recognize a capital
loss on a sale of Capital Securities during an Extension Period. Subject to
certain limited exceptions, capital losses cannot be applied to offset
ordinary income for United States federal income tax purposes.
BACKUP WITHHOLDING TAX AND INFORMATION REPORTING
The amount of interest paid and any OID accrued on the Capital Securities to
Securityholders (other than corporations and other exempt Securityholders)
will be reported to the IRS. It is expected that such income on the Capital
Securities will be reported to Securityholders on Form 1099 and mailed to
Securityholders by January 31 following each calendar year. "Backup"
withholding at a rate of 31% will apply to payments of interest and payments
of disposition (including redemption) proceeds to a non-exempt Securityholder
unless the securityholder furnishes to the payor its taxpayer identification
number, certifies that such number is correct, and meets certain other
conditions. Any amounts withheld from a Securityholder under the backup
withholding rules will be allowable as a refund or a credit against such
Securityholder's United States federal income tax liability provided the
required information is provided to the IRS.
UNITED STATES ALIEN SECURITYHOLDERS
For purposes of this discussion, a "United States Alien Securityholder" is
any Securityholder who is for United States federal income tax purposes (i) a
nonresident alien individual or (ii) a foreign corporation,
partnership or estate or trust. This discussion assumes that income with
respect to the Capital Securities is not effectively connected with a trade or
business in the United States in which the United States Alien Securityholder
is engaged.
Under current United States federal income tax law:
(i) payments by the Trust or any of its payment agents to any holder of
Capital Securities that is a United States Alien Securityholder generally
will not be subject to withholding or other United States federal Income
tax, provided that, in the case of payments with respect to interest
(including OID), (a) the beneficial owner of the Capital Securities does
not actually or constructively own 10% or more of the total combined voting
power of all classes of stock of the Company entitled to vote, (b) the
beneficial owner of the Capital Securities is not a controlled foreign
corporation that is related to the Company through stock ownership, and (c)
either (A) the beneficial owner of the Capital Securities certifies to the
Trust or its agent, under penalties of perjury, that it is a United States
Alien Securityholder and provides its name and address or (B) a securities
clearing organization, bank or other financial institution that holds
customers' securities in the ordinary courses of its trade or business (a
"Financial Institution") and holds the Capital Securities in such capacity
certifies to the Trust or its agent under penalties of perjury that such
statement has been
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received from the beneficial owner by it or by a Financial Institution
between it and the beneficial owner and furnishes the Trust or its agent
with a copy thereof; and
(ii) a United States Alien Securityholder of Capital Securities generally
will not be subject to withholding or other United States federal income
tax on any gain realized upon the sale or other disposition of Capital
Securities.
Recently issued Treasury regulations provide alternative methods for
satisfying the certification requirement described in clause (i) (c) above. In
the case of Capital Securities held by a foreign partnership, the new
regulations require that (1) the certification described in clause (i)(c)
above be provided by (x) the partners rather than by the foreign partnership
or, (y) alternatively, by the foreign partnership if it has entered into an
agreement with the IRS to be treated as a "withholding foreign partnership",
and (2) the partnership provide certain information, including a United States
taxpayer identification number. A look-through rule applies in the case of
tiered partnerships. The new regulations are effective for payments made after
December 31, 1998.
POSSIBLE TAX LAW CHANGES
Under current law, the Company will be able to deduct interest on the Junior
Subordinated Debentures and stated interest will be taxable to a United States
Person as ordinary income at the time paid or accrued. However, on February 6,
1997, as part of the Clinton Administration's Fiscal 1998 Budget Proposal, the
Treasury Department proposed the Clinton Proposal, which would have, among
other things, generally denied corporate issuers a federal income tax
deduction for interest in respect of debt obligations, such as the Junior
Subordinated Debentures, issued on or after the date of "first committee
action" with respect to the Clinton Proposal (i) if such debt obligations had
a maximum term in excess of 15 years and were not shown as indebtedness on the
issuer's applicable consolidated balance sheet or (ii) if such debt
obligations had a maximum weighted average maturity of more than 40 years.
The Clinton Proposal was not enacted. There can be no assurance, however,
that legislation similar to the Clinton Proposal or future legislative
proposals, future regulations or official administrative pronouncements or
future judicial decisions will not affect the ability of the Company to deduct
interest on the Junior Subordinated Debentures. Such a change could give rise
to a Tax Event, which may permit the Company, to cause a redemption of the
Capital Securities, as described more fully under "Description of Capital
Securities--Redemption" and "Description of Capital Securities--Liquidation of
the Trust and Distribution of Junior Subordinated Debentures."
ERISA CONSIDERATIONS
GENERAL
A fiduciary of an employee benefit plan subject to Title I of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA") should consider
the fiduciary obligations imposed under ERISA, in the context of the
particular circumstances of the plan, before authorizing an investment in the
Capital Securities or the Exchange Capital Securities with assets of the plan.
The fiduciary should consider whether such an investment satisfies ERISA's
diversification and prudence requirements, whether the investment constitutes
unauthorized delegation of fiduciary authority and whether the investment is
in accordance with the documents and instruments governing the plan. In
addition, ERISA and the Code prohibit a wide range of transactions
("Prohibited Transactions") involving the assets of a plan subject to ERISA or
the assets of an individual retirement account or a plan subject to Section
4975 of the Code (hereinafter an "ERISA Plan") and persons who have certain
specified relationships to the ERISA Plan ("parties in interest," within the
meaning of ERISA, and "disqualified persons," within the meaning of the Code).
Such transactions may cause ERISA Plan fiduciaries, parties in interest or
disqualified persons to be subject to excise taxes or to incur other
liabilities.
The acquisition of any Capital Security or any Exchange Capital Security by
any person who is using for such acquisition the assets of an ERISA Plan shall
constitute a representation by such person to the Company
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that (i) if the Company or a subsidiary or affiliate of the Company is a
"party in interest" or a "disqualified person" with respect to such ERISA
plan, then such security is being acquired pursuant to an exemption from the
Prohibited Transaction rules under ERISA and the Code, and (ii) neither the
Company nor a subsidiary or affiliate of the Company is a "fiduciary," within
the meaning of Section 3(21) of ERISA and the regulations thereunder, with
respect to such person's interest in the Capital Securities, the Exchange
Capital Securities, or the Junior Subordinated Debentures or the Exchange
Debentures.
Governmental plans and certain church plans (each as defined under ERISA)
are not subject to the fiduciary standards of ERISA and the Prohibited
Transaction rules. Such plans may, however, be subject to federal, state or
local laws or regulations which may affect their ability to invest in the
Capital Securities or the Exchange Capital Securities. Any fiduciary of such a
governmental or church plan considering an investment in the Capital
Securities or the Exchange Capital Securities should determine the need for,
and if necessary, the availability of, any exemptive relief under such laws or
regulations.
THE DISCUSSION HEREIN OF ERISA IS GENERAL IN NATURE AND IS NOT INTENDED TO
BE COMPLETE. ANY FIDUCIARY OF AN ERISA PLAN, GOVERNMENTAL PLAN OR CHURCH PLAN
CONSIDERING AN INVESTMENT IN THE CAPITAL SECURITIES OR THE EXCHANGE CAPITAL
SECURITIES SHOULD CONSULT WITH ITS LEGAL ADVISORS REGARDING THE CONSEQUENCES
AND ADVISABILITY OF SUCH INVESTMENT.
PROHIBITED TRANSACTIONS
The Company (or a subsidiary or affiliate of the Company) may be a party in
interest or a disqualified person with respect to an ERISA Plan investing in
the Capital Securities or the Exchange Capital Securities, and, therefore,
such investments by an ERISA Plan may give rise to a Prohibited Transaction.
Consequently, before investing in the Capital Securities or the Exchange
Capital Securities, any ERISA Plan fiduciary or other person who is using the
assets of an ERISA Plan to acquire such Securities should determine whether
its investment in the Capital Securities or the Exchange Capital Securities
will result in a Prohibited Transaction, and whether a statutory or
administrative exemption from the Prohibited Transaction rules would apply to
such person's investment in the Capital Securities or the Exchange Capital
Securities.
Certain statutory or administrative exemptions from the Prohibited
Transaction rules under ERISA and the code may be available to an ERISA Plan
which is investing in the Capital Securities or the Exchange Capital
Securities. Included among these exemptions are: Prohibited Transaction Class
Exemption ("PTCE") 90-1, regarding transactions involving insurance company
pooled separate accounts; PTCE 91-38, regarding transactions involving bank
collective investment funds; PTCE 84-14, regarding transactions effected by
qualified professional asset managers; PTCE 96-23, regarding transactions
effected by in-house asset managers; or PTCE 95-60, regarding transactions
involving insurance company general accounts. There can be no assurance,
however, that these exemptions, even if all of the conditions specified
therein are satisfied, will apply to transactions involving the Capital
Securities or the Exchange Capital Securities.
Insurance companies considering an investment in the Capital Securities or
the Exchange Capital Securities should note that the small Business Job
Protection Act of 1996 added new Section 401(c) of ERISA relating to the
status of the assets of insurance company general accounts under ERISA and
Section 4975 of the Code. Pursuant to Section 401(c), the Department of Labor
is required to issue final regulations (the "General Account Regulations")
with respect to insurance policies issued on or before December 31, 1998 that
are supported by an insurer's general account. The General Account Regulations
are to provide guidance on which assets held by the insurer constitute "plan
assets" of an ERISA Plan for purposes of the fiduciary responsibility
provisions of ERISA and Section 4975 of the Code. Section 401(c) also provides
that, except in the case of avoidance of the General Account Regulations and
actions brought by the Secretary of Labor relating to certain breaches of
fiduciary duties that also constitute breaches of state or federal criminal
law, until the date that is 18 months after the General Account Regulations
become final, no liability under the fiduciary responsibility and prohibited
transaction provisions of ERISA and Section 4975 may result on the basis of a
claim that the assets of the general account of an insurance company
constitute the plan assets of an ERISA Plan. The Department of Labor issued
proposal General Account Regulation on December 22, 1997 (see 6Z Fed. Reg.
66908) The plan asset status of
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insurance company separate accounts is unaffected by new Section 401(c) of
ERISA, and separate account assets continue to be treated as the plan assets
of an ERISA Plan invested in a separate account.
TRUST ASSETS AS "PLAN ASSETS"
The Department of Labor has issued final regulations (the "Final
Regulations") as to what constitutes assets of an employee benefit plan ("plan
asset") under ERISA and the Code. The Final Regulations provide that, as a
general rule, when an ERISA Plan acquires an equity interest in an entity and
such interest does not constitute a "publicly-offered security" or a security
issued by an investment company registered under the Investment Company Act of
1940, the ERISA Plan's assets include both the equity interest and an
undivided interest in each of the underlying assets of the entity, unless it
is established either that the entity is an operating company or that equity
participation in the entity by "benefit plan investors" is not "significant."
For purposes of the Final Regulations, the Trust will not be an investment
company or an operating company, and the Capital Securities will not
constitute a "publicly-offered security." As discussed below, at the time of
the Exchange Offer, the Exchange Capital Securities may qualify as "publicly
offered securities" for purposes of the Final Regulations, but such results
cannot be assured.
Under the Final Regulations, equity participation by benefit plan investors
will not be considered "significant" on any date only if, immediately after
the most recent acquisition of Capital Securities, the aggregate interest in
the Capital Securities held by benefit plan investors will be less than 25% of
the value of the Capital Securities. For purposes of this rule, a benefit plan
investor is any ERISA Plan and any other employee benefit plan, whether or not
subject to ERISA (such as government plans, foreign plans and certain church
plans). Although it is possible that the equity participation by benefit plan
investors on any date will not be "significant" for purposes of the Final
Regulations, such result cannot be assured because neither the Company nor the
Issuer Trustees will monitor equity participation by benefit plan investors.
Consequently, if ERISA Plans or investors using assets of ERISA Plans purchase
the Capital Securities, the Trust's assets could be deemed to be "plan assets"
of such ERISA Plans for purposes of the fiduciary responsibility provisions of
ERISA and the Code. Under ERISA, any person who exercises any authority or
control respecting the management or disposition the assets of an ERISA Plan
is considered to be a fiduciary of the plan. For example, the Property Trustee
could therefore become a fiduciary of the ERISA Plans that invest in the
Capital Securities and be subject to the general fiduciary requirements of
ERISA in exercising its authority with respect to the management of the assets
of the Trust. However, the Property Trustee will have only limited
discretionary authority with respect to the Trust's assets and the remaining
functions and responsibilities performed by the Property Trustee will be for
the most part custodial and ministerial in nature. Inasmuch as the Property
Trustee or another person with authority or control respecting the management
or disposition of the Trust assets may become a fiduciary with respect to the
ERISA Plans that will purchase the Capital Securities, there may be an
improper delegation by such ERISA Plans of the responsibility to manage plan
assets.
The Exchange Capital Securities will be distributed pursuant to an effective
registration statement under the Securities Act and will be registered under
the Exchange Act within 120 days (or such later time as may be allowed by the
SEC) after the end of the fiscal year of the Trust during which the offering
of the Exchange Capital Securities occurs. The Exchange Capital Securities may
qualify as "publicly offered securities" under the Final Regulations if, in
addition to such distribution and registration, at the time of the Exchange
Offer they are also "widely held" and "freely transferable". Under the Final
Regulations, a class of securities is "widely held" only if it is a class of
securities that is owned by 100 or more investors independent of the issuer
and of one another. Although it is possible that at the time of the Exchange
Offer the Exchange Capital Securities will be "widely held," such result
cannot be assured. Whether a security is "freely transferable" for purposes of
the Final Regulations is a factual question to be determined on the basis of
all relevant facts and circumstances. If at the time of the Exchange Offer the
Exchange Capital Securities qualify as "publicly offered securities," the
assets of the Trust should not be "plan assets" as of such time. If at the
time of the Exchange Offer the Exchange Capital Securities do not qualify as
"publicly offered securities," the "plan asset" considerations discussed in
the immediately preceding paragraph in connection with the Capital Securities
would apply in connection with the investment by ERISA Plans in the Exchange
Capital Securities.
65
<PAGE>
PLAN OF DISTRIBUTION
Each broker-dealer that receives New Capital Securities for its own account
in connection with the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such New Capital Securities. This
Prospectus, as it may be amended or supplemented from time to time, may be
used by Participating Broker-Dealers during the 90-day period referred to
below in connection with resales of New Capital Securities received in
exchange for Old Capital Securities if such Old Capital Securities were
acquired by such Participating Broker-Dealers for their own accounts as a
result of market-making activities or other trading activities. The Company
has agreed that this Prospectus, as it may be amended or supplemented from
time to time, may be used by a Participating Broker-Dealer in connection with
resales of such New Capital Securities for a period ending 90 days after the
Expiration Date (subject to extension under certain limited circumstances
described herein) or, if earlier, when all such New Capital Securities have
been disposed of by such Participating Broker-Dealer. See "The Exchange
Offer--Resales of New Capital Securities."
The Company will not receive any cash or other proceeds from the issuance of
the New Capital Securities offered hereby. New Capital Securities received by
broker-dealers for their own accounts in connection with the Exchange Offer
may be sold from time to time in one or more transactions in the over-the-
counter market, in negotiated transactions, through the writing of options on
the New Capital Securities or a combination of such methods of resale, at
market prices prevailing at the time of resale, at prices related to such
prevailing market prices or at negotiated prices. Any such resale may be made
directly to purchasers or to or through brokers or dealers who may receive
compensation in the form of commissions or concessions from any such broker-
dealer and/or the purchasers of any such New Capital Securities. Any broker-
dealer that resells New Capital Securities that were received by it for its
own account in connection with the Exchange Offer and any broker or dealer
that participates in a distribution of such New Capital Securities may be
deemed to be an "underwriter" within the meaning of the Securities Act, and
any profit on any such resale of New Capital Securities and any commissions or
concessions received by any such persons may be deemed to be underwriting
compensation under the Securities Act. The Letter of Transmittal states that
by acknowledging that it will deliver and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within
the meaning of the Securities Act.
EXPERT
The financial statements and the related financial statement schedules
incorporated in this prospectus by reference from the Company's Annual Report
on Form 10-K for the year ended December 31, 1997 have been audited by
Deloitte & Touche LLP, independent auditors, as stated in their report, which
is incorporated herein by reference, and have been so incorporated in reliance
upon the report of such firm given upon their authority as experts in
accounting and auditing.
VALIDITY OF SECURITIES
Certain matters of Delaware law relating to the validity of the New Capital
Securities and the creation of the Trust have been passed upon by Potter
Anderson & Corroon LLP, Wilmington, Delaware, special Delaware counsel to the
Company and the Trust. The validity of the New Guarantee and the New Junior
Subordinated Debentures and certain matters relating to United States federal
income tax considerations have been passed upon for the Company by McGuire,
Woods, Battle & Boothe LLP.
66
<PAGE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS IN CONNECTION WITH THE OFFER MADE
BY THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS
MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR THE TRUST.
NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL
UNDER ANY CIRCUMSTANCE CREATE AN IMPLICATION THAT THERE HAS BEEN NO CHANGE IN
THE AFFAIRS OF THE COMPANY OR THE TRUST SINCE THE DATE HEREOF. THIS PROSPECTUS
DOES NOT CONSTITUTE AN OFFER OR SOLICITATION BY ANYONE IN ANY JURISDICTION IN
WHICH SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED OR IN WHICH THE PERSON
MAKING SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO OR TO ANYONE TO
WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION.
---------------
TABLE OF CONTENTS
<TABLE>
<S> <C>
Available Information...................................................... 5
Incorporation of Certain Documents by Reference............................ 6
Summary.................................................................... 7
Risk Factors............................................................... 16
Dominion Resources, Inc. Ratio of Earnings to Fixed Charges................ 22
Use of Proceeds from Sale of the Old Capital Securities.................... 22
Dominion Resources Capital Trust I......................................... 22
Dominion Resources, Inc.................................................... 23
Accounting Treatment for the Trust......................................... 24
The Exchange Offer......................................................... 24
Description of New Securities.............................................. 33
Description of New Junior Subordinated Debentures.......................... 45
Description of New Guarantee............................................... 55
Description of Old Securities.............................................. 58
Relationship Among the New Capital Securities, the New Junior Subordinated
Debentures, the New Guarantee and Certain Undertakings Under the Trust
Agreement................................................................. 58
Certain Federal Income Tax Consequences.................................... 59
ERISA Considerations....................................................... 63
Plan of Distribution....................................................... 66
Experts.................................................................... 66
Validity of Securities..................................................... 66
</TABLE>
UNTIL , 1998, (90 DAYS AFTER THE DATE OF THIS PROSPECTUS) ALL DEALERS
EFFECTING TRANSACTIONS IN THE REGISTERED SECURITIES, WHETHER OR NOT
PARTICIPATING IN THIS DISTRIBUTION, MAY BE REQUIRED TO DELIVER A PROSPECTUS.
THIS IS IN ADDITION TO THE OBLIGATIONS OF DEALERS TO DELIVER A PROSPECTUS WHEN
ACTING AS UNDERWRITERS AND WITH RESPECT TO THEIR UNSOLD ALLOTMENT OR
SUBSCRIPTIONS.
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
DOMINION RESOURCES CAPITAL TRUST I
OFFER TO EXCHANGE ITS
7.83% CAPITAL SECURITIES WHICH
HAVE BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 FOR ANY
AND ALL OF ITS OUTSTANDING
7.83% CAPITAL SECURITIES
(LIQUIDATION AMOUNT $1,000
PER CAPITAL SECURITY) FULLY AND
UNCONDITIONALLY GUARANTEED,
AS DESCRIBED HEREIN,
BY DOMINION RESOURCES, INC.
---------------
PROSPECTUS
---------------
LOGO
, 1998
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article VI of Dominion Resources' Articles of Incorporation mandates
indemnification of its directors and officers to the full extent permitted by
the Virginia Stock Corporation Act (the Virginia Act) and any other applicable
law. The Virginia Act permits a corporation to indemnify its directors and
officers against liability incurred in all proceedings, including derivative
proceedings, arising out of their service to the corporation or to other
corporations or enterprises that the officer or director was serving at the
request of the corporation, except in the case of willful misconduct or a
knowing violation of a criminal law. Dominion Resources is required to
indemnify its directors and officers in all such proceedings if they have not
violated this standard.
In addition, Article VI of Dominion Resources' Articles of Incorporation
limits the liability of its directors and officers to the full extent
permitted by the Virginia Act as now and hereafter in effect. The Virginia Act
places a limit on the liability of a director or officer in derivative or
shareholder proceedings equal to the lesser of (i) the amount specified in the
corporation's articles of incorporation or a shareholder-approved bylaw; or
(ii) the greater of (a) $100,000 or (b) twelve months of cash compensation
received by the director or officer. The limit does not apply in the event the
director or officer has engaged in willful misconduct or a knowing violation
of a criminal law or a federal or state securities law. The effect of Dominion
Resources' Articles of Incorporation, together with the Virginia Act, is to
eliminate liability of directors and officers for monetary damages in
derivative or shareholder proceedings so long as the required standard of
conduct is met.
Dominion Resources has purchased directors' and officers' liability
insurance policies. Within the limits of their coverage, the policies insure
(1) the directors and officers of Dominion Resources against certain losses
resulting from claims against them in their capacities as directors and
officers to the extent that such losses are not indemnified by Dominion
Resources and (2) Dominion Resources to the extent that it indemnifies such
directors and officers for losses as permitted under the laws of Virginia.
Under the Trust Agreement, the Company has agreed to indemnify each of the
Issuer Trustees of the Trust, or any predecessor Issuer Trustee of the Trust,
and to hold the Issuer Trustees harmless against, any loss, damage, liability,
tax, penalty, expense or claim incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration of
the Trust, including the costs and expenses of defending themselves against
any claim or liability in connection with the exercise or performance of any
of their powers or duties under the Trust Agreement.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
<TABLE>
<CAPTION>
EXHIBIT
-------
<C> <S>
4.1* Junior Subordinated Indenture dated as of December 1, 1997 between
Dominion Resources, Inc. and The Chase Manhattan Bank, as trustee
4.2* First Supplemental Indenture dated as of December 1, 1997 between
Dominion Resources, Inc. and The Chase Manhattan Bank, as trustee
4.3* Certificate of Trust of Dominion Resources Capital Trust I
4.4* Trust Agreement of Dominion Resources Capital Trust I dated as of
October 31, 1997 among Dominion Resources, Inc., as Depositor, and the
trustees named therein
4.5* Amended and Restated Trust Agreement of Dominion Resources Capital
Trust I dated as of December 8, 1997 among Dominion Resources, Inc.,
as Depositor, The Chase Manhattan Bank, as Property Trustee, Chase
Manhattan Bank Delaware, as Delaware Trustee, the Administrative
Trustees named therein and the several holders, from time to time, of
the Capital Securities
4.6 Forms of Capital Security Certificates for Dominion Resources Capital
Trust I (included as Exhibits B, C and D to Exhibit 4.5)
</TABLE>
II-1
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
-------
<C> <S>
4.7 Form of Junior Subordinated Debenture for Dominion Resources, Inc.
(included as Exhibit A to Exhibit 4.2)
4.8* Capital Securities Guarantee Agreement dated as of December 8, 1997
between Dominion Resources, Inc. and The Chase Manhattan Bank, as
guarantee trustee
4.9* Form of Capital Securities Guarantee Agreement to be executed between
Dominion Resources, Inc. and The Chase Manhattan Bank, as guarantee
trustee
4.10* Capital Securities Exchange and Registration Rights Agreement dated as
of December 8, 1997 among Dominion Resources, Inc., Dominion Resources
Capital Trust I and Morgan Stanley & Co. Incorporated, J.P. Morgan
Securities Inc., Lehman Brothers Inc. and Merrill Lynch, Pierce,
Fenner & Smith Incorporated.
4.11* Debenture Exchange and Registration Rights Agreement dated as of
December 8, 1997 among Dominion Resources, Inc., Dominion Resources
Capital Trust I and Morgan Stanley & Co Incorporated, J.P. Morgan
Securities Inc., Lehman Brothers Inc. and Merrill Lynch, Pierce,
Fenner & Smith Incorporated.
4.12* Guarantee Exchange and Registration Rights Agreement dated as of
December 8, 1997 among Dominion Resources, Inc., Dominion Resources
Capital Trust I and Morgan Stanley & Co. Incorporated, J.P. Morgan
Securities Inc., Lehman Brothers Inc. and Merrill Lynch, Pierce,
Fenner & Smith Incorporated.
4.13* Agreement as to Expenses and Liabilities dated as of December 8, 1997
between Dominion Resources, Inc. and Dominion Resources Capital Trust
I
5.1* Opinion of McGuire, Woods, Battle & Boothe LLP as to validity of the
Junior Subordinated Debentures and the Guarantee to be issued by
Dominion Resources, Inc.
5.2* Opinion of Potter Anderson & Corroon LLP as to validity of the Capital
Securities to be issued by Dominion Resources Capital Trust I
8* Opinion of special tax counsel as to certain federal income tax
matters
12* Computation of ratios of earnings to fixed charges
23.1* Consent of Deloitte & Touche LLP
23.2 Consent of McGuire, Woods, Battle & Boothe LLP (included in Exhibits
5.1 and 8)
23.3 Consent of Potter Anderson & Corroon LLP (included in Exhibit 5.2)
24 Powers of Attorney (included in the signatures page of this
Registration Statement)
25.1* Form T-1 Statement of Eligibility of The Chase Manhattan Bank to act
as trustee under the Junior Subordinated Indenture
25.2* Form T-1 Statement of Eligibility of The Chase Manhattan Bank to act
as trustee under the Amended and Restated Trust Agreement of Dominion
Resources Capital Trust I
25.3* Form T-1 Statement of Eligibility of The Chase Manhattan Bank under
the Guarantee for the benefit of the holders of Capital Securities of
Dominion Capital Trust I
99.1* Form of Letter of Transmittal
99.2* Form of Notice of Guaranteed Delivery
99.3* Form of Letter from Registered Holders to Clients
99.4* Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies
and Other Nominees
99.5* Form of Exchange Agent Agreement
</TABLE>
- --------
* Filed herewith.
II-2
<PAGE>
ITEM 22. UNDERTAKINGS
Each of the undersigned Registrants hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, as amended, each
filing of a Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to Section 15(d)
of the Securities Exchange Act of 1934) that is incorporated by reference in
this Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of
each Registrant pursuant to the foregoing provisions, or otherwise, each
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by each
Registrant of expenses incurred or paid by a director, officer or controlling
person of each Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, each Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act
and will be governed by the final adjudication of such issue.
The undersigned Registrants hereby undertake to respond to requests for
information that is incorporated by reference into the Prospectus pursuant to
Item 4, 10(b), 11 or 13 of this Form, within one business day of receipt of
such request, and to send the incorporated documents by first class mail or
other equally prompt means. This includes information contained in documents
filed subsequent to the effective date of the Registration Statement through
the date of responding to the request.
The undersigned Registrants hereby undertake to supply by means of a post-
effective amendment all information concerning a transaction, and the company
being acquired or involved therein, that was not the subject of and included
in the Registration Statement when it became effective.
II-3
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT, THE REGISTRANT HAS DULY
CAUSED THIS REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE
UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF RICHMOND, COMMONWEALTH
OF VIRGINIA, ON THE 21ST DAY OF APRIL, 1998.
Dominion Resources, Inc.
By: /s/ Thos. E. Capp
___________________________________
(Thos. E. Capps, Chairman of the
Board of Directors, President
and Chief Executive Officer)
Pursuant to requirements of the Securities Act of 1933, this registration
statement has been signed by the following persons in the capacities indicated
and on the 21st day of April, 1998. The officers and directors whose
signatures appear below hereby constitute Patricia A. Wilkerson or W.H. Riggs,
Jr., any of whom may act, as their true and lawful attorneys-in-fact, with
full power to sign on their behalf individually and in each capacity stated
below and file all amendments and post-effective amendments to the
registration statement making such changes in the registration statement as
the registrant deems appropriate, and generally to do all things in their name
and in their capacities as officers and directors to enable the registrant to
comply with the provisions of the Securities Act of 1933 and all requirements
of the Securities and Exchange Commission.
SIGNATURE TITLE
--------- -----
/s/ John B. Adams, Jr. Director
- -----------------------------
John B. Adams, Jr.
/s/ John B. Bernhardt Director
- -----------------------------
John B. Bernhardt
/s/ Thos. E. Capps Chairman of the Board of Directors,
- ----------------------------- President and Chief Executive
Thos. E. Capps Officer
/s/ Benjamin J. Lambert, III Director
- -----------------------------
Benjamin J. Lambert, III
/s/ Richard L. Leatherwood Director
- -----------------------------
Richard L. Leatherwood
/s/ Harvey L. Lindsay, Jr. Director
- -----------------------------
Harvey L. Lindsay, Jr.
/s/ K. A. Randall Director
- -----------------------------
K. A. Randall
II-4
<PAGE>
SIGNATURE TITLE
--------- -----
/s/ William T. Roos Director
- ----------------------------
William T. Roos
/s/ Frank S. Royal Director
- ----------------------------
Frank S. Royal
/s/ Judith B. Sack Director
- ----------------------------
Judith B. Sack
/s/ S. Dallas Simmons Director
- ----------------------------
S. Dallas Simmons
/s/ Robert H. Spilman Director
- ----------------------------
Robert H. Spilman
/s/ E. M. Roach, Jr. Executive Vice President (Chief
- ---------------------------- Financial Officer)
E. M. Roach, Jr.
/s/ J. L. Trueheart Vice President and Controller
- ---------------------------- (Principal Accounting
J. L. Trueheart Officer)
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, DOMINION
RESOURCES CAPITAL TRUST I HAS DULY CAUSED THIS REGISTRATION STATEMENT TO BE
SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY
OF RICHMOND, COMMONWEALTH OF VIRGINIA ON THE 21ST DAY OF APRIL, 1998.
Dominion Resources Capital Trust I
By: Dominion Resources, Inc., as
Depositor
By: /s/ G. Scott Hetzer
__________________________________
G. Scott Hetzer
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
-------
<C> <S>
4.1* Junior Subordinated Indenture dated as of December 1, 1997 between
Dominion Resources, Inc. and The Chase Manhattan Bank, as trustee
4.2* First Supplemental Indenture dated as of December 1, 1997 between
Dominion Resources, Inc. and The Chase Manhattan Bank, as trustee
4.3* Certificate of Trust of Dominion Resources Capital Trust I
4.4* Trust Agreement of Dominion Resources Capital Trust I dated as of
October 31, 1997 among Dominion Resources, Inc., as Depositor, and the
trustees named therein
4.5* Amended and Restated Trust Agreement of Dominion Resources Capital
Trust I dated as of December 8, 1997 among Dominion Resources, Inc.,
as Depositor, The Chase Manhattan Bank, as Property Trustee, Chase
Manhattan Bank Delaware, as Delaware Trustee, the Administrative
Trustees named therein and the several holders, from time to time, of
the Capital Securities
4.6 Forms of Capital Security Certificates for Dominion Resources Capital
Trust I (included as Exhibits B, C and D to Exhibit 4.5)
4.7 Form of Junior Subordinated Debenture for Dominion Resources, Inc.
(included as Exhibit A to Exhibit 4.2)
4.8* Capital Securities Guarantee Agreement dated as of December 8, 1997
between Dominion Resources, Inc. and The Chase Manhattan Bank, as
guarantee trustee
4.9* Form of Capital Securities Guarantee Agreement to be executed between
Dominion Resources, Inc. and The Chase Manhattan Bank, as guarantee
trustee
4.10* Capital Securities Exchange and Registration Rights Agreement dated as
of December 8, 1997 among Dominion Resources, Inc., Dominion Resources
Capital Trust I and Morgan Stanley & Co. Incorporated, J.P. Morgan
Securities Inc., Lehman Brothers Inc. and Merrill Lynch, Pierce,
Fenner & Smith Incorporated.
4.11* Debenture Exchange and Registration Rights Agreement dated as of
December 8, 1997 among Dominion Resources, Inc., Dominion Resources
Capital Trust I and Morgan Stanley & Co. Incorporated, J.P. Morgan
Securities Inc., Lehman Brothers Inc. and Merrill Lynch, Pierce,
Fenner & Smith Incorporated.
4.12* Guarantee Exchange and Registration Rights Agreement dated as of
December 8, 1997 among Dominion Resources, Inc., Dominion Resources
Capital Trust I and Morgan Stanley & Co. Incorporated, J.P. Morgan
Securities Inc., Lehman Brothers Inc. and Merrill Lynch, Pierce,
Fenner & Smith Incorporated.
4.13* Agreement as to Expenses and Liabilities dated as of December 8, 1997
between Dominion Resources, Inc. and Dominion Resources Capital Trust
I
5.1* Opinion of McGuire, Woods, Battle & Boothe LLP as to validity of the
Junior Subordinated Debentures and the Guarantee to be issued by
Dominion Resources, Inc.
5.2* Opinion of Potter Anderson & Corroon LLP as to validity of the Capital
Securities to be issued by Dominion Resources Capital Trust I
8* Opinion of special tax counsel as to certain federal income tax
matters
12* Computation of ratios of earnings to fixed charges
23.1* Consent of Deloitte & Touche LLP
23.2 Consent of McGuire, Woods, Battle & Boothe LLP (included in Exhibits
5.1 and 8)
23.3 Consent of Potter Anderson & Corroon LLP (included in Exhibit 5.2)
24 Powers of Attorney (included in the signatures page of this
Registration Statement)
</TABLE>
II-6
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
-------
<C> <S>
25.1* Form T-1 Statement of Eligibility of The Chase Manhattan Bank to act
as trustee under the Junior Subordinated Indenture
25.2* Form T-1 Statement of Eligibility of The Chase Manhattan Bank to act
as trustee under the Amended and Restated Trust Agreement of Dominion
Resources Capital Trust I
25.3* Form T-1 Statement of Eligibility of The Chase Manhattan Bank under
the Guarantee for the benefit of the holders of Capital Securities of
Dominion Capital Trust I
99.1* Form of Letter of Transmittal
99.2* Form of Notice of Guaranteed Delivery
99.3* Form of Letter from Registered Holders to Clients
99.4* Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies
and Other Nominees
99.5* Form of Exchange Agent Agreement
</TABLE>
- --------
*Filed herewith.
II-7
<PAGE>
EXHIBIT 4.1
DOMINION RESOURCES, INC.
AND
THE CHASE MANHATTAN BANK
TRUSTEE
INDENTURE
DATED AS OF DECEMBER 1, 1997
JUNIOR SUBORDINATED DEBENTURES
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S> <C>
ARTICLE I
DEFINITIONS
1.1 Certain Terms Defined............................................. 2
ARTICLE II
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION OF TRANSFER
AND EXCHANGE OF SECURITIES
2.1 Amount, Series and Delivery of Securities......................... 12
2.2 Form of Securities and Trustee's Certificate...................... 16
2.3 Denominations of and Payment of Interest on
Securities........................................................ 18
2.4 Execution of Securities........................................... 20
2.5 Registration, Transfer and Exchange of
Securities........................................................ 20
2.6 Temporary Securities.............................................. 23
2.7 Mutilated, Destroyed, Lost or Stolen
Securities........................................................ 23
2.8 Cancellation and Destruction of Surrendered
Securities........................................................ 24
2.9 Authenticating Agents............................................. 25
2.10 Deferrals of Interest Payment Dates............................... 26
2.11 Right of Set-Off.................................................. 27
2.12 Shortening or Extension of Stated Maturity........................ 27
2.13 Agreed Tax Treatment.............................................. 27
2.14 CUSIP Numbers..................................................... 28
ARTICLE III
REDEMPTION OF SECURITIES
3.1 Applicability of Article.......................................... 28
3.2 Mailing of Notice of Redemption................................... 28
3.3 When Securities Called for Redemption Become
Due and Payable................................................... 30
ARTICLE IV
PARTICULAR COVENANTS OF THE COMPANY
4.1 Payment of Principal of and Interest on Securities................ 31
</TABLE>
i
<PAGE>
<TABLE>
<S> <C>
4.2 Maintenance of Offices or Agencies for
Registration of Transfer, Exchange and
Payment of Securities................................................ 31
4.3 Appointment to Fill a Vacancy in the Office
of Trustee........................................................... 32
4.4 Duties of Paying Agent............................................... 32
4.5 Further Assurances................................................... 33
4.6 Officers' Certificate as to Defaults; Notices
of Certain Defaults.................................................. 33
4.7 Waiver of Covenants.................................................. 33
4.8 Additional Tax Sums.................................................. 34
4.9 Additional Covenants................................................. 34
4.10 Calculation of Original Issue Discount............................... 35
ARTICLE V
SECURITYHOLDERS' LISTS AND REPORTS BY THE COMPANY
AND THE TRUSTEE
5.1 Company to Furnish Trustee Information as
to the Names and Addresses of Securityholders........................ 36
5.2 Trustee to Preserve Information as to the
Names and Addresses of Securityholders
Received by It....................................................... 36
5.3 Annual and Other Reports to be Filed by
Company with Trustee................................................. 36
5.4 Trustee to Transmit Annual Report to
Securityholders...................................................... 37
ARTICLE VI
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
6.1 Events of Default Defined............................................ 39
6.2 Covenant of Company to Pay to Trustee Whole
Amount Due on Securities on Default in Payment
of Interest or Principal............................................. 42
6.3 Application of Moneys Collected by Trustee........................... 44
6.4 Limitation on Suits by Holders of Securities......................... 45
6.5 On Default Trustee May Take Appropriate
Action; Direct Action................................................ 46
6.6 Rights of Holders of Majority in Principal
Amount of Securities to Direct Trustee and
to Waive Default..................................................... 47
6.7 Trustee to Give Notice of Defaults Known to
It, but May Withhold in Certain Circumstances........................ 47
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6.8 Requirement of an Undertaking to Pay Costs in
Certain Suits Under the Indenture or Against
the Trustee....................................................... 48
ARTICLE VII
CONCERNING THE TRUSTEE
7.1 Upon Event of Default Occurring and Continuing,
Trustee Shall Exercise Powers Vested in It,
and Use Same Degree of Care and Skill in
Their Exercise, as a Prudent Man Would Use........................ 48
7.2 Reliance on Documents, Opinions, Etc.............................. 50
7.3 Trustee Not Liable for Recitals in Indenture
or in Securities.................................................. 51
7.4 May Hold Securities............................................... 52
7.5 Moneys Received by Trustee to be Held in Trust
without Interest.................................................. 52
7.6 Trustee Entitled to Compensation, Reimbursement
and Indemnity..................................................... 52
7.7 Right of Trustee to Rely on Officers'
Certificate where No Other Evidence
Specifically Prescribed........................................... 53
7.8 Disqualification; Conflicting Interests........................... 53
7.9 Requirements for Eligibility of Trustee........................... 53
7.10 Resignation and Removal of Trustee................................ 53
7.11 Acceptance by Successor Trustee................................... 55
7.12 Successor to Trustee by Merger, Consolidation
or Succession to Business......................................... 56
7.13 Limitations on Preferential Collection of
Claims by the Trustee............................................. 57
ARTICLE VIII
CONCERNING THE SECURITYHOLDERS
8.1 Evidence of Action by Securityholders............................. 57
8.2 Proof of Execution of Instruments and of
Holding of Securities............................................. 58
8.3 Who may be Deemed Owners of Securities............................ 58
8.4 Securities Owned by Company or Controlled or
Controlling Persons Disregarded for Certain
Purposes.......................................................... 59
8.5 Instruments Executed by Securityholders
Bind Future Holders............................................... 59
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ARTICLE IX
SECURITYHOLDERS' MEETINGS
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9.1 Purposes for which Meetings may be Called....................... 60
9.2 Manner of Calling Meetings...................................... 60
9.3 Call of Meeting by Company or
Securityholders................................................. 60
9.4 Who May Attend and Vote at Meetings............................. 61
9.5 Regulations may be made by Trustee.............................. 61
9.6 Manner of Voting at Meetings and Record to
be Kept......................................................... 62
9.7 Exercise of Rights of Trustee, Securityholders
and Holders of Preferred Securities Not to be
Hindered or Delayed............................................. 62
ARTICLE X
SUPPLEMENTAL INDENTURES
10.1 Purposes for which Supplemental Indentures
may be Entered into Without Consent of
Securityholders................................................. 63
10.2 Modification of Indenture with Consent of
Holders of a Majority in Principal Amount of
Securities...................................................... 64
10.3 Effect of Supplemental Indentures............................... 66
10.4 Securities May Bear Notation of Changes by
Supplemental Indentures......................................... 67
10.5 Revocation and Effect of Consents............................... 67
10.6 Conformity with Trust Indenture Act............................. 67
ARTICLE XI
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
11.1 Company May Consolidate, etc., on Certain
Terms........................................................... 68
11.2 Successor Corporation Substituted............................... 68
11.3 Opinion of Counsel to Trustee................................... 69
ARTICLE XII
SATISFACTION AND DISCHARGE OF INDENTURE, UNCLAIMED MONEYS
12.1 Satisfaction and Discharge of Indenture......................... 69
12.2 Application by Trustee of Funds Deposited
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for Payment of Securities...................................... 70
12.3 Repayment of Moneys Held by Paying Agent....................... 70
12.4 Repayment of Moneys Held by Trustee............................ 70
ARTICLE XIII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS,
DIRECTORS AND EMPLOYEES
13.1 Incorporators, Stockholders, Officers,
Directors and Employees of Company Exempt
from Individual Liability...................................... 70
ARTICLE XIV
SUBORDINATION OF SECURITIES
14.1 Agreement to Subordinate....................................... 71
14.2 Obligation of the Company Unconditional........................ 73
14.3 Limitations on Duties to Holders of Senior
Indebtedness of the Company.................................... 74
14.4 Notice to Trustee of Facts Prohibiting
Payment........................................................ 74
14.5 Application by Trustee of Moneys Deposited
with It........................................................ 75
14.6 Subrogation.................................................... 75
14.7 Subordination Rights Not Impaired by Acts or
Indebtedness of the Company.................................... 75
14.8 Authorization of Trustee to Effectuate
Subordination of Securities.................................... 76
14.9 No Payment when Senior Indebtedness in
Default........................................................ 76
14.10 Right of Trustee to Hold Senior Indebtedness
of the Company................................................. 76
14.11 Article Fourteen Not to Prevent Defaults....................... 77
ARTICLE XV
MISCELLANEOUS PROVISIONS
15.1 Successors and Assigns of Company Bound by
Indenture...................................................... 77
15.2 Acts of Board, Committee or Officer of
Successor Corporation Valid.................................... 77
15.3 Required Notices or Demands may be Served
by Mail........................................................ 77
15.4 Officers' Certificate and Opinion of Counsel
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to be Furnished upon Applications or Demands
by the Company..................................................... 77
15.5 Payments Due on Saturdays, Sundays, and
Holidays........................................................... 78
15.6 Provisions Required by Trust Indenture Act
of 1939 to Control................................................. 78
15.7 Indenture and Securities to be Construed in
Accordance with the Laws of the State of
New York........................................................... 78
15.8 Provisions of the Indenture and Securities
for the Sole Benefit of the Parties and the
Securityholders.................................................... 78
15.9 Indenture may be Executed in Counterparts.......................... 78
15.10 Securities in Foreign Currencies................................... 79
15.11 Table of Contents, Headings, etc................................... 79
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THIS INDENTURE, dated as of the 1st day of December, 1997 between DOMINION
RESOURCES, INC., a corporation duly organized and existing under the laws of the
Commonwealth of Virginia (hereinafter sometimes referred to as the "Company"),
party of the first part, and THE CHASE MANHATTAN BANK, a New York banking
corporation (hereinafter sometimes referred to as the "Trustee"), party of the
second part.
WITNESSETH:
WHEREAS, for its lawful corporate purposes, the Company has duly authorized
the issuance from time to time of its unsecured junior subordinated debentures
or other evidences of indebtedness (hereinafter referred to as the
"Securities"), without limit as to principal amount, issuable in one or more
series, the amount and terms of each such series to be determined as hereinafter
provided, including, without limitation, Securities issued to evidence loans
made to the Company of the proceeds from the issuance from time to time by one
or more business trusts (each a "DRI Trust," and collectively, the "DRI Trusts")
of preferred interests in such Trusts, having the rights provided for in such
Trusts (the "Preferred Securities" which may also be referred to, without
limitation, as the "Capital Securities") and common interests in such Trusts,
having the rights provided for in such Trusts (the "Common Securities," and
collectively with the Preferred Securities, the "Trust Securities"); to be
authenticated by the Trustee; and, to provide the terms and conditions upon
which the Securities are to be authenticated, issued and delivered, the Company
has duly authorized the execution of this Indenture; and
WHEREAS, all acts and things necessary to make the Securities when executed
by the Company and authenticated and delivered by the Trustee as in this
Indenture provided, the valid, binding and legal obligations of the Company, and
to constitute these presents a valid indenture and agreement according to its
terms, have been done and performed and the execution of this Indenture and the
issue hereunder of the Securities have in all respects been duly authorized, and
the Company, in the exercise of the legal rights and power vested in it,
executes this Indenture and proposes to make, execute, issue and deliver the
Securities;
NOW, THEREFORE, in order to declare the terms and conditions upon which the
Securities are authenticated, issued and delivered, and in consideration of the
premises and of the purchase and acceptance of the Securities by the holders
thereof, the Company covenants and agrees with the Trustee, for the equal and
proportionate benefit of the respective holders from time to time of the
Securities or of series thereof, as follows:
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ARTICLE I
DEFINITIONS
1.1 CERTAIN TERMS DEFINED. For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:
(a) The terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(b) All other terms used herein which are defined in the Trust
Indenture Act of 1939, whether directly or by reference therein, have the
meanings assigned to them therein (except as otherwise expressly provided);
(c) All accounting terms used herein and not expressly defined herein
shall have the meanings assigned to them in accordance with generally accepted
accounting principles in the United States of America, and, except as otherwise
herein expressly provided, the term "generally accepted accounting principles"
with respect to any computation required or permitted hereunder shall mean such
accounting principles as are generally accepted in the United States of America
at the date of such computation; provided, that when two or more principles are
so generally accepted, it shall mean that set of principles consistent with
those in use by the Company; and
(d) The terms "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Additional Interest:
The term "Additional Interest" means the interest, if any, that shall
accrue on any interest on the Securities of any series the payment of which has
not been made on the applicable interest payment date and which shall accrue at
the rate per annum specified or determined as specified in such Security.
Additional Tax Sums:
The term "Additional Tax Sums" has the meaning specified in Section 4.8.
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Administrative Trustee:
The term "Administrative Trustee" means, in respect of any DRI Trust, each
Person identified as an "Administrative Trustee" in the related Trust Agreement,
solely in such Person's capacity as Administrative Trustee of such DRI Trust
under such Trust Agreement and not in such Person's individual capacity, or any
successor administrative trustee appointed as therein provided.
Authenticating Agent:
The term "Authenticating Agent" means any Authenticating Agent appointed by
the Trustee pursuant to Section 2.9.
Authorized Newspaper:
The term "Authorized Newspaper" means a newspaper in an official language
of the place of publication, customarily published at least once a day for at
least five days in each calendar week and of general circulation in each place
in connection with which the term is used or in the financial community of each
such place. Whenever successive publications are required to be made in an
Authorized Newspaper, the successive publications may be made in the same or in
a different newspaper meeting the foregoing requirements and in each case on any
day of the week. If it is impossible or, in the opinion of the Trustee,
impracticable to publish any notice in the manner herein provided, then such
publication in lieu thereof as shall be made with the approval of the Trustee
shall constitute a sufficient publication of such notice.
Board of Directors:
The term "Board of Directors," when used with reference to the Company,
means the Board of Directors of the Company or the Executive Committee or any
other committee of or created by the Board of Directors of the Company duly
authorized to act hereunder.
Business Day:
The term "Business Day" means any day which is not a Saturday or Sunday or
a day on which banking institutions in The City of New York are authorized or
required by law or executive order to close or a day on which the principal
corporate trust office of the Trustee or the Property Trustee is closed for
business.
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Capital Securities:
The term "Capital Securities" has the meaning specified in the recitals to
this Indenture.
Capital Stock:
The term "Capital Stock" means shares of capital stock of any class of any
corporation whether now or hereafter authorized regardless of whether such
capital stock shall be limited to a fixed sum or percentage in respect of the
rights of the holders thereof to participate in dividends and in the
distribution of assets upon any voluntary or involuntary liquidation,
dissolution or winding up.
Commission:
The term "Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or, if at any time
after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act of 1939,
then the body performing such duties on such date.
Common Securities:
The term "Common Securities" has the meaning specified in the recitals to
this Indenture.
Common Stock:
The term "Common Stock" means the common stock, no par value, of the
Company.
Company:
The term "Company" means Dominion Resources, Inc., a corporation duly
organized and existing under the laws of the Commonwealth of Virginia and,
subject to the provisions of Article Eleven, shall also include its successors
and assigns.
Depositary:
The term "Depositary" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more global
Securities, the person designated as Depositary by the Company pursuant to
Section 2.1 until a successor Depositary shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter the term "Depositary"
shall mean or include each person who
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is then a Depositary hereunder and if at any time there is more than one such
person, the term "Depositary" as used with respect to the Securities of any
series shall mean the Depositary with respect to the Securities of such series.
Distributions:
The term "Distributions," with respect to the Trust Securities issued by a
DRI Trust, means amounts payable in respect of such Trust Securities as provided
in the related Trust Agreement and referred to therein as "Distributions."
DRI Guarantee:
The term "DRI Guarantee" means the guarantee by the Company of
distributions on the Preferred Securities of a DRI Trust to the extent provided
in the Guarantee Agreement (as defined in the related Trust Agreement).
DRI Trust:
The terms "DRI Trust" and "DRI Trusts" each have the meaning specified in
the recitals to this Indenture.
Event of Default:
The term "Event of Default" with respect to Securities of any series shall
mean any event specified as such in Section 6.1 and any other event as may be
established with respect to the Securities of such series as contemplated by
Section 2.1.
Exchange Act:
The term "Exchange Act" has the meaning specified in Section 2.2.
Extension Period:
The term "Extension Period" has the meaning specified in Section 2.10.
Indenture:
The term "Indenture" means this instrument as originally executed, or, if
amended or supplemented as herein provided, then as so amended or supplemented,
and shall include the form and terms of particular series of Securities
established as contemplated by Sections 2.1 and 2.2.
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Investment Company Event:
The term "Investment Company Event" means in respect of a DRI Trust, the
receipt by the Company and a DRI Trust of an Investment Company Event Opinion
(as defined in the relevant Trust Agreement) to the effect that, as a result of
the occurrence of a change in law or regulation or a change in interpretation or
application of law or regulation by any legislative body, court, governmental
agency or regulatory authority (a "Change in 1940 Act Law"), such DRI Trust is
or will be considered an investment company that is required to be registered
under the 1940 Act, which Change in 1940 Act Law becomes effective on or after
the date of original issuance of the Preferred Securities of such DRI Trust.
Maturity:
The term "Maturity" when used with respect to any Security means the date
on which the principal of such Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
1940 Act:
The term "1940 Act" means the Investment Company Act of 1940, as amended.
Officers' Certificate:
The term "Officers' Certificate" shall mean a certificate signed by the
Chairman of the Board, any Vice Chairman of the Board, the Chief Executive
Officer, the President, any Vice Chairman or any Vice President of the Company
(whether or not designated by a number or a word or words added before or after
the title Vice President) and by the Treasurer, an Assistant Treasurer, the
Controller, the Corporate Secretary or an Assistant Corporate Secretary of the
Company and delivered to the Trustee. Each such certificate shall include the
statements provided for in Section 15.4, if and to the extent required by the
provisions thereof and will comply with Section 314 of the Trust Indenture Act
of 1939.
Opinion of Counsel:
The term "Opinion of Counsel" shall mean a written opinion of counsel, who
shall be reasonably satisfactory to the Trustee, and who may be an employee of,
or counsel to, the Company and delivered to the Trustee. Each such opinion
shall include the statements provided for in Section 15.4, if and to the extent
required by the provisions thereof and will comply with Section 314 of the Trust
Indenture Act of 1939.
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Original Issue Date:
The term "Original Issue Date" means the first date of issuance of each
Security.
Original Issue Discount Security:
The term "Original Issue Discount Security" shall mean any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon declaration pursuant to Section 6.1.
Paying Agent:
The term "Paying Agent" means the Trustee or any Person or Persons
authorized by the Company to pay the principal or interest on any Securities on
behalf of the Company.
Person:
The term "Person" or "person" means any individual, corporation, estate,
partnership, joint venture, association, joint stock company, limited liability
company, trust, unincorporated association or government or any agency or
political subdivision thereof, or any other entity of whatever nature.
Preferred Securities:
The term "Preferred Securities" has the meaning specified in the recitals
to this Indenture.
principal:
The term "principal," whenever used with reference to the Securities or any
Security or any portion thereof, shall be deemed to include "and premium, if
any."
Property Trustee:
The term "Property Trustee" means, in respect of any DRI Trust, the
commercial bank or trust company identified as the "Property Trustee" in the
related Trust Agreement, solely in its capacity as Property Trustee of such DRI
Trust under such Trust Agreement and not in its individual capacity, or its
successor in interest in such capacity, or any successor property trustee
appointed as therein provided.
ranking junior to the Securities:
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The term "ranking junior to the Securities" when used with respect to any
obligation of the Company means any other obligation of the Company which (a)
ranks junior to and not equally with or prior to the Securities (or any other
obligations of the Company ranking on a parity with the Securities) in right of
payment upon the happening of any event of the kind specified in the first
sentence of the second paragraph of Section 14.1, or (b) is specifically
designated as ranking junior to the Securities by express provision in the
instrument creating or evidencing such obligation.
The securing of any obligations of the Company, otherwise ranking junior to
the Securities, shall be deemed to prevent such obligations from constituting
obligations ranking junior to the Securities.
ranking on a parity with the Securities:
The term "ranking on a parity with the Securities" when used with respect
to any obligation of the Company means any obligation of the Company which (a)
ranks equally with and not prior to the Securities in right of payment upon the
happening of any event of the kind specified in the first sentence of the second
paragraph of Section 14.1, (b) any DRI Guarantee of Preferred Securities of any
DRI Trust or other entity affiliated with the Company that is a financing entity
of the Company, or (c) is specifically designated as ranking on a parity with
the Securities by express provision in the instrument creating or evidencing
such obligation.
The securing of any obligations of the Company, otherwise ranking on a
parity with the Securities, shall not be deemed to prevent such obligations from
constituting obligations ranking on a parity with the Securities.
record date:
The term "record date" has the meaning specified in Section 2.3.
redemption; redeem; redeemable; etc.:
The terms "redemption," "redeem" and "redeemable" when used with respect to
any Security, shall include, without limitation, any prepayment or repayment
provisions applicable to such Security.
Register:
The term "Register" has the meaning specified in Section 2.5.
Resolution of the Company:
8
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The term "Resolution of the Company" means a resolution of the Company, in
the form of a resolution of the Board of Directors, in the form of a resolution
of a duly constituted committee of the Board of Directors, or in the form of a
resolution of two or more senior officers of the Company, authorizing,
ratifying, setting forth or otherwise validating agreements, execution and
delivery of documents, the issuance, form and terms of Securities, or any other
actions or proceedings pursuant or with respect to this Indenture.
Responsible Officer:
The term "Responsible Officer," when used with respect to the Trustee,
means the chairman and vice chairman of the board of directors, the president,
the chairman and vice chairman of the executive committee of the board of
directors, every vice president or officer senior thereto, every assistant vice
president, the secretary, every assistant secretary, the treasurer, every
assistant treasurer, every corporate trust officer, every assistant corporate
trust officer, and every other officer and assistant officer of the Trustee
customarily performing functions similar to those performed by the persons who
at the time shall be such officers, respectively, or to whom any corporate trust
matter is referred because of his knowledge of, and familiarity with, a
particular subject.
Rights Plan:
The term "Rights Plan" means a plan of the Company providing for the
issuance by the Company to all holders of its Common Stock of rights entitling
the holders thereof to subscribe for or purchase shares of Common Stock or any
class or series of preferred stock, which rights (i) are deemed to be
transferred with such shares of Common Stock, (ii) are not exercisable and (iii)
are also issued in respect of future issuances of Common Stock, in each case
until the occurrence of a specified event or events.
Security or Securities; outstanding:
The term "Security" or "Securities" means any security or securities of the
Company, as the case may be, without regard to series, authenticated and
delivered under this Indenture.
The term "outstanding," when used with reference to Securities and subject
to the provisions of Section 8.4, means as of any particular time, all
Securities authenticated and delivered by the Trustee under this Indenture,
except
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(a) Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or redemption of
which moneys in the necessary amount shall have been deposited in trust with the
Trustee or with any Paying Agent (other than the Company) or shall have been set
aside and segregated in trust by the Company (if the Company shall act as its
own Paying Agent), provided that such Securities shall have reached their Stated
Maturity or, if such Securities are to be redeemed prior to the Stated Maturity
thereof, notice of such redemption shall have been given as in Article Three
provided, or provision satisfactory to the Trustee shall have been made for
giving such notice; and
(c) Securities in lieu of or in substitution for which other
Securities shall have been authenticated and delivered or which have been paid
pursuant to the terms of Section 2.7 unless proof satisfactory to the Trustee is
presented that any such Securities are held by a bona fide purchaser in whose
hands any of such Securities is a valid, binding and legal obligation of the
Company.
In determining whether the holders of the requisite principal amount of
outstanding Securities have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, the principal amount of an Original Issue
Discount Security that shall be deemed to be outstanding for such purposes shall
be the amount of the principal thereof that would be due and payable as of the
date of such determination upon a declaration of acceleration of the Maturity
thereof pursuant to Section 6.1.
Securityholder; registered holder:
The terms "Securityholder," "holder of Securities," "registered holder" or
other similar term, mean any person who shall at the time be the registered
holder of any Security or Securities on the Register kept for that purpose in
accordance with the provisions of this Indenture.
Senior Indebtedness of the Company:
The term "Senior Indebtedness of the Company" means (i) any indebtedness of
the Company for borrowed or purchased money, whether or not evidenced by bonds,
debentures, notes or other written instruments, (ii) obligations of the Company
for reimbursement under letters of credit, banker's acceptances, security
purchase facilities or similar facilities issued for the account of the Company,
(iii) any indebtedness or other obligations of the Company with respect to
commodity contracts (including but not limited to contracts in the spot, forward
and futures
10
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markets, options, and contracts for differences), interest rate commodity and
currency swap agreements, cap, floor and collar agreements, currency spot and
forward contracts, and other similar agreements or arrangements designed to
protect against fluctuations in commodity prices, currency exchange or interest
rates, and (iv) any guarantees, endorsements (other than by endorsement of
negotiable instruments for collection in the ordinary course of business) or
other similar contingent obligations in respect of obligations of others of a
type described in (i), (ii) or (iii) above, whether or not such obligation is
classified as a liability on a balance sheet prepared in accordance with
generally accepted accounting principles, in each case listed in (i), (ii),
(iii) and (iv) above whether outstanding on the date of execution of this
Indenture or thereafter incurred, other than obligations ranking on a parity
with the Securities or ranking junior to the Securities; provided, however, that
"Senior Indebtedness of the Company" does not include (a) obligations to trade
creditors or (b) any indebtedness of the Company to any of its Subsidiaries.
Special Interest:
The term "Special Interest" shall have the meaning ascribed to it in the
Debenture Exchange and Registration Rights Agreement.
Stated Maturity:
The term "Stated Maturity" when used with respect to any Security or any
installment of principal thereof or interest thereon means the date specified
pursuant to the terms of such Security as the date on which the principal of
such Security or such installment of interest is due and payable in the case of
such principal, as such date may be shortened or extended as provided pursuant
to the terms of such Security and this Indenture.
Subsidiary:
The term "Subsidiary" means any corporation(or the equivalent type of
entity in other jurisdictions) more than 50% of the outstanding voting stock of
which is owned, directly or indirectly, by the Company or by one or more other
Subsidiaries, or by the Company and one or more other Subsidiaries. For the
purposes of this definition, "voting stock" means stock which ordinarily has
voting power for the election of directors, whether at all times or only so long
as no senior class of stock has such voting power by reason of any contingency.
Tax Event:
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The term "Tax Event" means the receipt by the Company and a DRI Trust of a
Tax Event Opinion (as defined in the relevant Trust Agreement) to the effect
that, as a result of any amendment to, or change (including any announced
prospective change) in, the laws (or any regulations thereunder) of the United
States or any political subdivision or taxing authority thereof or therein, or
as a result of any official administrative written decision or pronouncement or
judicial decision interpreting or applying such laws or regulations, which
amendment or change is effective or which pronouncement or decision is announced
on or after the date of issuance of the Preferred Securities of such DRI Trust,
there is more than an insubstantial risk that (i) the DRI Trust is, or will be
within 90 days after the date of such Tax Event Opinion, subject to United
States federal income tax with respect to income received or accrued on the
corresponding series of Securities issued by the Company to such DRI Trust, (ii)
interest payable by the Company on such corresponding series of Securities is
not, or within 90 days of the date of such Tax Event Opinion, will not be,
deductible by the Company, in whole or in part, for United States federal income
tax purposes, or (iii) the DRI Trust is, or will be within 90 days after the
date of such Tax Event Opinion, subject to more than a de minimis amount of
other taxes, duties or other governmental charges.
Trust Agreement:
The term "Trust Agreement" means the Trust Agreement governing any DRI
Trust, whether now existing or created in the future, which purchased the
Securities of any series in each case.
Trustee; Principal Office of the Trustee:
The term "Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument, and, subject to the provisions of Article Seven,
shall also include its successors. The term "principal office" of the Trustee
shall mean the principal corporate trust office of the Trustee in The City of
New York, State of New York, at which the corporate trust business of the
Trustee shall, at any particular time, be principally administered. The present
address of the office at which the corporate trust business of the Trustee is
administered is 450 West 33rd Street, New York, New York 10001 (Attention:
Corporate Trustee Administration Department).
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Trust Indenture Act of 1939:
Except as herein otherwise expressly provided or unless the context
requires otherwise, the term "Trust Indenture Act of 1939" shall mean the Trust
Indenture Act of 1939, as amended by the Trust Indenture Reform Act of 1990, as
in force at the date as of which this Indenture was originally executed;
provided, however, that, in the event that the Trust Indenture Act is amended
after such date, then "Trust Indenture Act of 1939" means, to the extent
required by any such amendment, the Trust Indenture Act of 1939 as so amended.
Trust Securities:
The term "Trust Securities" has the meaning specified in the recitals to
this Indenture.
ARTICLE II
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION OF TRANSFER
AND EXCHANGE OF SECURITIES
2.1 AMOUNT, SERIES AND DELIVERY OF SECURITIES. The aggregate principal
amount of Securities which may be authenticated and delivered under this
Indenture is unlimited.
The Securities may be issued in one or more series. The terms of each
series (which terms shall not be inconsistent with the provisions of this
Indenture), shall either be established in or pursuant to a Resolution of the
Company and set forth in an Officers' Certificate, or set forth in one or more
indentures supplemental hereto, prior to the issuance of Securities of any
series and shall specify:
(a) The designation of the Securities of such series (which shall
distinguish the Securities of the series from all other Securities and which
shall include the word "subordinated" or a word of like meaning);
(b) Any limit upon the aggregate principal amount of the Securities of
such series which may be executed, authenticated and delivered under this
Indenture; provided, however, that nothing contained in this Section or
elsewhere in this Indenture or in such Securities or in a Resolution of the
Company or Officers' Certificate or supplemental indenture is intended to or
shall limit execution by the Company or authentication and delivery by the
Trustee of Securities under the circumstances contemplated by Sections 2.5, 2.6,
2.7, 3.2, 3.3 and 10.4;
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(c) The date or dates (if any) on which the principal of the
Securities of such series is payable;
(d) The rate or rates at which the Securities of such series shall
bear interest, if any, the rate or rates and extent to which Additional Interest
or other interest, if any, shall be payable, the date or dates from which such
interest shall accrue, the dates on which such interest shall be payable, the
record date for the interest payable on any interest payment date and the right
of the Company to defer or extend an interest payment date;
(e) The place or places where Securities of such series may be
presented for payment and for the other purposes provided in Section 4.2;
(f) Any price or prices at which, any period or periods within which,
and any terms and conditions upon which Securities of such series may be
redeemed or prepaid, in whole or in part, at the option of the Company;
(g) The type or types (if any) of Capital Stock of the Company into
which, any period or periods within which, and any terms and conditions upon
which Securities of such series may be made payable, converted, exchanged in
whole or in part, at the option of the holder or of the Company;
(h) If other than denominations of $1,000 and any whole multiple
thereof, the denominations in which Securities of such series shall be issuable;
(i) If other than the principal amount thereof, the portion of the
principal amount of Securities of such series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 6.1;
(j) If other than such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public or
private debts, the coin or currency (which may be a composite currency) in which
payment of the principal of and interest, if any, on the Securities of such
series shall be payable;
(k) If the principal of or interest, if any, on the Securities of such
series are to be payable, at the election of the Company or a holder thereof, in
a coin or currency (including composite currency) other than that in which the
Securities of such series are stated to be payable, the period or periods within
which, and the terms and conditions upon which, such election may be made;
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(l) If the amounts of payments of principal of or interest, if any, on
the Securities of such series may be determined with reference to an index based
on a coin or currency (including composite currency) other than that in which
the Securities of such series are stated to be payable, the manner in which such
amounts shall be determined;
(m) If the Securities of such series are payable at Maturity or upon
earlier redemption in Capital Stock, the terms and conditions upon which such
payment shall be made;
(n) The person or persons who shall be registrar for the Securities of
such series, and the place or places where the Register of Securities of the
series shall be kept;
(o) Any Events of Default with respect to the Securities of such
series, if not set forth herein;
(p) Whether any Securities of such series are to be issuable in global
form with or without coupons, and, if so, the Depositary for such global
Securities and whether beneficial owners of interests in any such global
Security may exchange such interests for definitive Securities of such series
and of like tenor of any authorized form and denomination and the circumstances
under which, and the place or places where, any such exchanges may occur, if
other than in the manner provided in Section 2.5;
(q) The form of the related Trust Agreement and DRI Guarantee, if
applicable;
(r) Whether any Securities of such series are subject to any
securities law or other restrictions on transfer; and any other terms of the
series (which terms shall not be inconsistent with the provisions of this
Indenture);
or in any case, the method for determining such terms, the persons authorized to
determine such terms and the limits, if any, within which any such determination
of such terms is to be made.
The Securities of all series shall be subordinate to Senior Indebtedness of
the Company as provided in Article Fourteen. The applicable Resolution of the
Company, Officers' Certificate or supplemental indenture may provide that
Securities of any particular series may be issued at various times, with
different dates on which the principal or any installment of principal is
payable, with different rates of interest, if any, or different methods by which
interest may be determined, with different dates from which such interest shall
accrue,
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with different dates on which such interest may be payable or with any different
terms other than Events of Default but all such Securities of a particular
series shall for all purposes under this Indenture including, but not limited
to, voting and Events of Default, be treated as Securities of a single series.
If any of the terms of any series of Securities are established by action
taken pursuant to a Resolution of the Company, a copy of an appropriate record
of such action shall be certified by the Corporate Secretary or an Assistant
Corporate Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Officers' Certificate or supplemental indenture setting
forth the terms of the series.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication by it, and the Trustee shall thereupon
authenticate and deliver such Securities to or upon the written order of the
Company, signed by its Chairman of the Board, or its Chief Executive Officer, or
its President, or any Vice Chairman or any Vice President of the Company
(whether or not designated by a number or a word or words added before or after
the title Vice President), and by its Treasurer or an Assistant Treasurer or its
Controller or its Corporate Secretary or an Assistant Corporate Secretary,
without any further corporate action by the Company. If the form or terms of
the Securities of the series have been established in or pursuant to a
Resolution of the Company and set forth in an Officers' Certificate, or set
forth in one or more supplemental indentures hereto, as permitted by this
Section and Section 2.2, in authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive, and (subject to Section 7.1) shall be
fully protected in relying upon:
(a) an Opinion of Counsel to the effect that:
(i) the form or forms and terms, or if all Securities of such
series are not to be issued at one time, the manner of determining the
terms of such Securities, have been established in conformity with the
provisions of this Indenture;
(ii) all conditions precedent provided for in this Indenture to
the authentication and delivery of such Securities have been complied with
and that such Securities when completed by appropriate insertions, executed
under the Company's corporate seal and attested by duly authorized officers
of the Company, delivered by duly authorized
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officers of the Company to the Trustee for authentication pursuant to this
Indenture, and authenticated and delivered by the Trustee and issued by the
Company in the manner and subject to any conditions specified in such
Opinion of Counsel, will constitute valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms,
except as enforcement thereof may be subject to or limited by bankruptcy,
insolvency, reorganization, moratorium, arrangement, fraudulent conveyance,
fraudulent transfer or other similar laws relating to or affecting
creditors' rights generally, and subject to general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity or
at law); and
(iii) if the Securities of such series have been registered under
the Securities Act, that this Indenture has been qualified under the Trust
Indenture Act;
and
(b) an Officers' Certificate stating that, to the best knowledge of
the Persons executing such certificate, no event which is, or after notice or
lapse of time would become, an Event of Default with respect to any of the
Securities shall have occurred and be continuing.
The Trustee shall not be required to authenticate such Securities if the
issue of such Securities pursuant to this Indenture will affect the Trustee's
own rights, duties or immunities under the Securities and this Indenture or
otherwise in a manner which is not reasonably acceptable to the Trustee.
If all the Securities of any series are not to be issued at one time, it
shall not be necessary to deliver either an Opinion of Counsel or an Officers'
Certificate at the time of issuance of each Security, provided that such Opinion
of Counsel and Officers' Certificate, with appropriate modifications, are
instead delivered at or prior to the time of issuance of the first Security of
such series.
Each Security shall be dated the date of its authentication.
2.2 FORM OF SECURITIES AND TRUSTEE'S CERTIFICATE. The Securities of each
series shall be substantially of the tenor and terms as shall be authorized in
or pursuant to a Resolution of the Company and set forth in an Officers'
Certificate, or set forth in an indenture or indentures supplemental hereto in
each case with such appropriate insertions, omissions, substitutions and other
variations as are required or
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permitted by this Indenture, and may have such letters, numbers or other marks
of identification or designation and such legends or endorsements thereon as the
Company may deem appropriate and as are not inconsistent with the provisions of
this Indenture, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any stock
exchange or automated quotation system on which the Securities may be listed, or
to conform to usage. If the form of Securities of any series is authorized by
action taken pursuant to a Resolution of the Company, a copy of an appropriate
record of such action shall be certified by the Corporate Secretary or an
Assistant Corporate Secretary of the Company and delivered to the Trustee at or
prior to the delivery of the Officers' Certificate contemplated by Section 2.1
setting forth the terms of the series.
The Securities may be printed, lithographed or fully or partly engraved.
The Trustee's certificate of authentication shall be in substantially the
following form:
"This is one of the Securities, of the series designated herein, referred
to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK, as
Trustee
By: ______________________________
Authorized Officer"
If Securities of a series are issuable in global form, as specified
pursuant to Section 2.1, then, notwithstanding clause (h) of Section 2.1 and the
provisions of Section 2.3, such Security shall represent such amount of the
outstanding Securities of such series as shall be specified therein and may
provide that it shall represent the aggregate amount of outstanding Securities
of such series from time to time endorsed thereon and that the aggregate amount
of outstanding Securities of such series represented thereby may from time to
time be increased or reduced to reflect exchanges or transfers (in any event,
not to exceed the aggregate principal amount authorized from time to time
pursuant to Section 2.1). Any endorsement of a Security in global form to
reflect the amount, or any increase or decrease in the amount, of outstanding
Securities represented thereby shall be made by the Trustee in such manner and
upon instructions given by such person or persons as shall be specified in such
Security or by the Company. Subject to the provisions of Section
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2.4 and, if applicable, Section 2.6, the Trustee shall deliver and redeliver any
Security in global form in the manner and upon written instructions given by the
person or persons specified in such Security or by the Company. Any instructions
by the Company with respect to endorsement or delivery or redelivery of a
Security in global form after the original issuance of the Securities of such
series shall be in writing, and shall not be objected to in writing by the
Depositary, but need not comply with Section 15.4 and need not be accompanied by
an Opinion of Counsel.
Unless otherwise specified pursuant to Section 2.1, payment of principal of
and any premium and any interest on any Security in global form shall be made to
the person or persons specified therein.
The owners of beneficial interests in any global Security shall have no
rights under this Indenture with respect to any global Security held on their
behalf by a Depositary, and such Depositary may be treated by the Company, the
Trustee, and any agent of the Company or the Trustee as the sole holder and
owner of such global Security for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Company, the Trustee or any agent of
the Company or the Trustee from giving effect to any written certification,
proxy or other authorization furnished by a Depositary, or impair, as between a
Depositary and its participants in any global Security, the operation of
customary practices governing the exercise of the rights of a holder of a
Security of any series, including, without limitation, the granting of proxies
or other authorization of participants to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action that a holder
is entitled to give or take under this Indenture.
Neither the Company, the Trustee nor any Authenticating Agent will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests of a global Security
or for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
Each Depositary designated pursuant to Section 2.1 for a global Security
must, at the time of its designation and at all times while it serves as
Depositary, be a clearing agency registered under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and any other applicable statute or
regulation.
2.3 DENOMINATIONS OF AND PAYMENT OF INTEREST ON SECURITIES. The Securities
of each series shall be issuable as fully registered Securities without coupons
in such denominations as shall be specified as contemplated by Section 2.1
(except as provided in Section 2.2 and Section 2.6). In the absence of any such
provisions with respect to the
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Securities of any series, the Securities of such series shall be issuable in
denominations of $1,000 and integral multiples of $1,000 in excess thereof.
If the Securities of any series shall bear interest, each Security of such
series shall bear interest from the applicable date at the rate or rates per
annum, and such interest shall be payable on the dates, specified on, or
determined in the manner provided in, the Security. The person in whose name
any Security is registered at the close of business on any record date (as
defined below) for the Security with respect to any interest payment date for
such Security shall be entitled to receive the interest payable thereon on such
interest payment date notwithstanding the cancellation of such Security upon any
registration of transfer, exchange or conversion thereof subsequent to such
record date and prior to such interest payment date, unless such Security shall
have been called for redemption on a date fixed for redemption subsequent to
such record date and prior to such interest payment date or unless the Company
shall default in the payment of interest due on such interest payment date on
such Security, in which case such defaulted interest shall be paid to the person
in whose name such Security (or any Security or Securities issued upon
registration of transfer or exchange thereof) is registered at the close of
business on the record date for the payment of such defaulted interest, or
except as otherwise specified as contemplated by Section 2.1. The term "record
date" as used in this Section with respect to any regular interest payment date
for any Security shall mean such day or days as shall be specified as
contemplated by Section 2.1; provided, however, that in the absence of any such
provisions with respect to any Security, such term shall mean: (1) if such
interest payment date is the first day of a calendar month, the fifteenth day of
the calendar month next preceding such interest payment date; or (2) if such
interest payment date is the fifteenth day of a calendar month, the first day of
such calendar month; provided, further, that (except as otherwise specified as
contemplated by Section 2.1) if the day which would be the record date as
provided herein is not a Business Day, then it shall mean the Business Day next
preceding such day. Such term, as used in this Section, with respect to the
payment of any defaulted interest on any Security shall mean (except as
otherwise specified as contemplated by Section 2.1) the fifth day next preceding
the date fixed by the Company for the payment of defaulted interest, established
by notice given by first class mail by or on behalf of the Company to the holder
of such Security not less than 10 days preceding such record date, or, if such
fifth day is not a Business Day, the Business Day next preceding such fifth day.
2.4 EXECUTION OF SECURITIES. The Securities shall be signed on behalf of
the Company, manually or in facsimile, by its Chairman of the Board, or its
Chief Executive Officer, or its President, or any Vice
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Chairman, or any Vice President of the Company (whether or not designated by a
number or a word or words added before or after the title Vice President), and
by its Treasurer or an Assistant Treasurer or its Controller or its Corporate
Secretary or an Assistant Corporate Secretary under its corporate seal, which
may be affixed thereto or printed, engraved or otherwise reproduced thereon, by
facsimile or otherwise. Only such Securities as shall bear thereon a certificate
of authentication substantially in the form recited herein, executed by or on
behalf of the Trustee manually by an authorized officer, shall be entitled to
the benefits of this Indenture or be valid or obligatory for any purpose. Such
certificate of authentication by the Trustee upon any Security executed by the
Company shall be conclusive evidence that the Security so authenticated has been
duly authenticated and delivered hereunder and that the holder is entitled to
the benefits of this Indenture. Typographical or other errors or defects in the
seal or facsimile signature on any Security or in the text thereof shall not
affect the validity or enforceability of such Security if it has been duly
authenticated and delivered by the Trustee.
In case any officer of the Company who shall have signed any of the
Securities, manually or in facsimile, shall cease to be such officer before the
Securities so signed shall have been authenticated and delivered by the Trustee,
or disposed of by the Company, such Securities nevertheless may be authenticated
and delivered or disposed of as though the person who signed such Securities had
not ceased to be such officer of the Company; and any Security may be signed on
behalf of the Company, manually or in facsimile, by such persons as, at the
actual date of the execution of such Security, shall be the proper officers of
the Company, although at the date of the execution of this Indenture any such
person was not such officer.
2.5 REGISTRATION, TRANSFER AND EXCHANGE OF SECURITIES. Securities of any
series (other than a global Security, except as set forth below) may be
exchanged for a like aggregate principal amount of Securities of the same series
of the same tenor and terms of other authorized denominations. Securities to be
exchanged shall be surrendered at the offices or agencies to be maintained by
the Company in accordance with the provisions of Section 4.2 and the Company
shall execute and the Trustee shall authenticate and deliver, or cause to be
authenticated and delivered, in exchange therefor the Security or Securities
which the Securityholder making the exchange shall be entitled to receive.
The Company shall keep, at one of the offices or agencies to be maintained
by the Company in accordance with the provisions of Section 4.2 with respect to
the Securities of each series, a Register (the "Register") in which, subject to
such reasonable regulations as it may prescribe, the Company shall register the
Securities of such series and
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the transfer of Securities of such series as in this Article provided. Such
Register shall be in written form or in any other form capable of being
converted into written form within a reasonable time. At all reasonable times
the Register shall be open for inspection by the Trustee and any registrar of
the Securities of such series other than the Trustee. Upon due presentment for
registration of transfer of any Security of any series at the offices or
agencies of the Company to be maintained by the Company in accordance with
Section 4.2 with respect to the Securities of such series, the Company shall
execute and register and the Trustee shall authenticate and deliver in the name
of the transferee or transferees a new Security or Securities of the same series
of like tenor and terms for a like aggregate principal amount of authorized
denominations.
Every Security issued upon registration of transfer or exchange of
Securities pursuant to this Section shall be the valid obligation of the
Company, evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Security or Securities surrendered upon registration of such
transfer or exchange.
All Securities of any series presented or surrendered for exchange,
registration of transfer, redemption, conversion or payment shall, if so
required by the Company or any registrar of the Securities of such series, be
accompanied by a written instrument or instruments of transfer, in form
satisfactory to the Company and such registrar, duly executed by the registered
holder or by his attorney duly authorized in writing.
No service charge shall be made for any exchange or registration of
transfer of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in relation
thereto.
The Company shall not be required to exchange or register the transfer of
(a) any Securities of any series during a period beginning at the opening of
business fifteen days before the day of the mailing of a notice of redemption of
outstanding Securities of such series and ending at the close of business on the
relevant redemption date, or (b) any Securities or portions thereof called or
selected for redemption, except, in the case of Securities called for redemption
in part, the portion thereof not so called for redemption.
Notwithstanding any other provision of this Section, unless and until it is
exchanged in whole or in part for Securities in definitive form, a global
Security representing all or a portion of the Securities of a series may not be
transferred, except as a whole by the Depositary for such series to a nominee of
such
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Depositary or by a nominee of such Depositary to such Depositary or another
nominee of such Depositary or by such Depositary or any such nominee to a
successor Depositary for such series or a nominee of such successor Depositary.
Notwithstanding the foregoing, except as otherwise specified pursuant to
Section 2.1, any global Security shall be exchangeable pursuant to this Section
only as provided in this paragraph. If at any time the Depositary for the
Securities of a series notifies the Company that it is unwilling or unable to
continue as Depositary for the Securities of such series, or if at any time the
Depositary for the Securities of such series shall cease to be a "clearing
agency" registered under the Exchange Act, the Company shall appoint a successor
Depositary with respect to the Securities of such series. If (a) a successor
Depositary for the Securities of such series is not appointed by the Company
within 90 days after the Company receives such notice or becomes aware of such
ineligibility (thereby automatically making the Company's election pursuant to
Section 2.1 no longer effective with respect to the Securities of such series),
(b) the beneficial owners of interests in a global Security are entitled to
exchange such interests for definitive Securities of such series and of the same
tenor and terms, as specified pursuant to Section 2.1, (c) there shall have
occurred and be continuing an Event of Default with respect to the Securities of
such series, or (d) the Company in its sole discretion determines that the
Securities of any series issued in the form of one or more global Securities
shall no longer be represented by such global Security or Securities, then
without unnecessary delay, but, if appropriate, in any event not later than the
earliest date on which such interest may be so exchanged, the Company shall
deliver to the Trustee definitive Securities in aggregate principal amount equal
to the principal amount of such global Security, executed by the Company and
authenticated by the Trustee. On or after the earliest date on which such
interests are or may be so exchanged, such global Security shall be surrendered
by the Depositary to the Trustee, as the Company's agent for such purpose, to be
exchanged, in whole or from time to time in part, for definitive Securities upon
payment by the beneficial owners of such interest, at the option of the Company,
of a service charge for such exchange and of a proportionate share of the cost
of printing such definitive Securities, and the Trustee shall authenticate and
deliver, (a) to each person specified by the Depositary in exchange for each
portion of such global Security, an equal aggregate principal amount of
definitive Securities of the same series of authorized denominations and of the
same tenor and terms as the portion of such global Security to be exchanged, and
(b) to such Depositary a global Security in a denomination equal to the
difference, if any, between the principal amount of the surrendered global
security and the aggregate principal amount of definitive Securities delivered
to holders thereof; provided, however, that no such exchanges may occur during a
period beginning at the opening of business
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15 days before any selection of Securities of that series to be redeemed and
ending on the relevant redemption date. If a Security is issued in exchange for
any portion of a global Security after the close of business at the office or
agency where such exchange occurs on (i) any record date and before the opening
of business at such office or agency on the relevant interest payment date, or
(ii) any record date for the payment of defaulted interest and before the
opening of business at such office or agency on the related proposed date for
payment of defaulted interest, then interest or default interest, as the case
may be, will not be payable on such interest payment date or proposed date for
payment of defaulted interest, as the case may be, in respect of such Security,
but will be payable on such interest payment date or proposed date for payment
of defaulted interest, as the case may be, only to the person to whom interest
in respect of such portion of such global Security is payable in accordance with
the provisions of this Indenture and such global Security.
2.6 TEMPORARY SECURITIES. Pending the preparation of definitive
Securities of any series, the Company may execute and the Trustee shall, upon
the written order of the Company, authenticate and deliver temporary Securities
of such series (printed or lithographed) of any denomination and substantially
in the form of the definitive Securities of such series, but with or without a
recital of specific redemption prices or conversion provisions and with such
omissions, insertions and variations as may be appropriate for temporary
Securities, all as may be determined by the Company. Temporary Securities may
contain such reference to any provisions of this Indenture as may be
appropriate. Every such temporary Security shall be authenticated by the
Trustee upon the same conditions and in substantially the same manner, and with
the same effect, as the definitive Securities. Without unreasonable delay the
Company will execute and deliver to the Trustee definitive Securities of such
series and thereupon any or all temporary Securities of such series may be
surrendered in exchange therefor, at the offices or agencies to be maintained by
the Company as provided in Section 4.2 with respect to the Securities of such
series, and the Trustee shall, upon the written order of the Company,
authenticate and deliver in exchange for such temporary Securities an equal
aggregate principal amount of definitive Securities of such series. Until so
exchanged, the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
such series authenticated and delivered hereunder.
2.7 MUTILATED, DESTROYED, LOST OR STOLEN SECURITIES. In case any
temporary or definitive Security shall become mutilated or be destroyed, lost or
stolen, the Company, in the case of any mutilated Security shall, and in the
case of any destroyed, lost or stolen Security in its discretion may, execute,
and upon its request the Trustee shall
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authenticate and deliver, or cause to be authenticated and delivered, a new
Security of the same series of like tenor and terms in exchange and substitution
for the mutilated Security, or in lieu of and in substitution for the Security
so destroyed, lost or stolen. In case any such Security shall have matured or
shall be about to mature, instead of issuing a substituted Security, the Company
may pay or authorize payment of the same (without surrender thereof, except in
the case of a mutilated Security). In every case the applicant for a substituted
Security or for such payment shall furnish to the Company and the Trustee such
security or indemnity as may be required by them to save each of them harmless,
and, in every case of destruction, loss or theft, the applicant shall also
furnish to the Company and to the Trustee evidence to their satisfaction of the
destruction, loss or theft of such Security and of the ownership thereof. The
Trustee may authenticate any such substituted Security and deliver the same, or
the Trustee or any Paying Agent of the Company may make any such payment, upon
the written request or authorization of any officer of the Company. Upon the
issue of any substituted Security, the Company may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other reasonable expenses connected therewith
(including the fees and expenses of the Trustee).
To the extent permitted by mandatory provisions of law, every substituted
Security issued pursuant to the provisions of this Section in substitution for
any destroyed, lost or stolen Security shall constitute an additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be found at any time, and shall be entitled to all the
benefits of this Indenture equally and proportionately with any and all other
Securities of the same series duly issued hereunder.
To the full extent legally enforceable, all Securities shall be held and
owned upon the express condition that the foregoing provisions are exclusive
with respect to the replacement or payment of mutilated, destroyed, lost or
stolen Securities and shall preclude any and all other rights or remedies
notwithstanding any law or statute now existing or hereafter enacted to the
contrary with respect to the replacement or payment of negotiable instruments or
other securities without their surrender.
2.8 CANCELLATION AND DESTRUCTION OF SURRENDERED SECURITIES. All Securities
surrendered for the purpose of payment, redemption, exchange, substitution or
registration of transfer, shall, if surrendered to the Company or any agent of
the Company or of the Trustee, be delivered to the Trustee, and the same,
together with Securities surrendered to the Trustee for cancellation, shall be
canceled by it, and no Securities shall be issued in lieu thereof except as
expressly permitted by any of
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the provisions of this Indenture. The Trustee shall dispose of canceled
Securities in accordance with its customary procedures and deliver a certificate
of disposition thereof to the Company unless by an Officers' Certificate, the
Company shall direct that canceled Securities be returned to it. If the Company
shall purchase or otherwise acquire any of the Securities, however, such
purchase or acquisition shall not operate as a payment, redemption or
satisfaction of the indebtedness represented by such Securities unless and until
the Company, at its option, shall deliver or surrender the same to the Trustee
for cancellation.
2.9 AUTHENTICATING AGENTS. The Trustee may from time to time appoint one
or more Authenticating Agents with respect to one or more series of Securities,
which shall be authorized to act on behalf of the Trustee and subject to its
direction in authenticating and delivering Securities of such series pursuant
hereto in connection with exchanges, registrations of transfer, redemptions or
conversions, as fully to all intents and purposes as though any such
Authenticating Agent had been expressly authorized to authenticate and deliver
Securities of such series, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as though authenticated by the Trustee. Wherever reference is made in
this Indenture to the authentication or delivery of Securities by the Trustee or
the Trustee's certificate of authentication, such reference shall be deemed to
include authentication or delivery on behalf of the Trustee by an Authenticating
Agent and a certificate of authentication executed on behalf of the Trustee by
an Authenticating Agent. Each Authenticating Agent shall at all times be a
corporation (including a banking association) organized and doing business under
the laws of the United States or any State or territory thereof or of the
District of Columbia, having a combined capital and surplus of at least five
million dollars ($5,000,000) authorized under such laws to exercise corporate
trust powers and subject to supervision or examination by federal, state,
territorial, or District of Columbia authorities. If such corporation publishes
reports of condition at least annually, pursuant to law or to the requirements
of the aforesaid supervising or examining authority, then for the purposes of
this Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time an Authenticating Agent shall
cease to be eligible in accordance with the provisions of this Section, it shall
resign immediately in the manner and with the effect herein specified in this
Section.
Any corporation succeeding to the corporate agency business of an
Authenticating Agent shall continue to be an Authenticating Agent, if such
successor corporation is otherwise eligible under this Section,
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without the execution or filing of any paper or any further act on the part of
the Trustee or the Authenticating Agent or such successor corporation.
Any Authenticating Agent may at any time resign by giving written notice of
resignation to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice of
termination to such Authenticating Agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent. Any successor Authenticating Agent upon acceptance of its appointment
hereunder shall become vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally named as an
Authenticating Agent herein. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section.
Any Authenticating Agent by the acceptance of its appointment shall be
deemed to have agreed with the Trustee that: it will perform and carry out the
duties of an Authenticating Agent as herein set forth, including among other
things the duties to authenticate and deliver Securities of any series for which
it has been appointed an Authenticating Agent when presented to it in connection
with exchanges, registrations of transfer or any redemptions or conversions
thereof; it will furnish from time to time as requested by the Trustee
appropriate records of all transactions carried out by it as Authenticating
Agent and will furnish the Trustee such other information and reports as the
Trustee may reasonably require; it is eligible for appointment as Authenticating
Agent under this Section and will notify the Trustee promptly if it shall cease
to be so qualified; and it will indemnify the Trustee against any loss,
liability or expense incurred by the Trustee and will defend any claim asserted
against the Trustee by reason of any acts or failures to act of the
Authenticating Agent but it shall have no liability for any action taken by it
at the specific written direction of the Trustee.
2.10 DEFERRALS OF INTEREST PAYMENT DATES. If specified as contemplated by
Section 2.1 or Section 2.2 with respect to the Securities of a particular
series, so long as no Event of Default has occurred and is continuing, the
Company shall have the right, at any time during the term of such series, from
time to time to defer the payment of interest on such Securities for such period
or periods as may be specified as contemplated by Section 2.1 (each, an
"Extension Period") during which
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Extension Periods the Company shall have the right to make partial payments of
interest on any interest payment date. No Extension Period shall end on a date
other than an interest payment date or extend beyond the Stated Maturity. At the
end of any such Extension Period the Company shall pay all interest then accrued
and unpaid on the Securities (together with Additional Interest or other
interest thereon, if any, at the rate specified for the Securities of such
series to the extent permitted by applicable law).
2.11 RIGHT OF SET-OFF. With respect to the Securities of a series issued
to a DRI Trust, notwithstanding anything to the contrary in this Indenture (but
subject to the last paragraph of Section 6.5), the Company shall have the right
to set off any payment it is otherwise required to make thereunder in respect of
any such Security to the extent the Company has theretofore made, or is
concurrently on the date of such payment making, such payment under the DRI
Guarantee relating to such Security or under Section 6.5 of this Indenture.
2.12 SHORTENING OR EXTENSION OF STATED MATURITY. If specified as
contemplated by Section 2.1 or Section 2.2 with respect to the Securities of a
particular series, the Company shall have the right to (i) shorten the Stated
Maturity of the principal of the Securities of such series at any time to any
date not earlier than the first date on which the Company has the right, if any,
to redeem the Securities of such series, and (ii) extend the Stated Maturity of
the principal of the Securities of such series at any time at its election for
one or more periods, but in no event to a date later than the 49th anniversary
of the first interest payment date following the Original Issue Date of the
Securities of such series; provided that, if the Company elects to exercise its
right to extend the Stated Maturity of the principal of the Securities of such
series pursuant to this clause (ii), at the time such election is made and at
the time of extension (A) the Company is not in bankruptcy, otherwise insolvent
or in liquidation, (B) the Company is not in default in the payment of any
interest or principal on such Securities, (C) in the case of any series of
Securities issued to a DRI Trust, such DRI Trust is not in arrears on payments
of Distributions on the Preferred Securities issued by such DRI Trust and no
deferred Distributions are accumulated, and (D) such Securities are rated not
less than BBB- by Standard & Poor's Ratings Services or Baa3 by Moody's
Investors Service, Inc. or the equivalent by any other nationally recognized
statistical rating organization. In the event the Company elects to shorten or
extend the Stated Maturity of the Securities of a particular series, it shall
give notice to the Trustee (not less than 45 days prior to the effectiveness
thereof), and the Trustee shall give notice of such shortening or extension to
the holders not less than 30 nor more than 60 days prior to the effectiveness
thereof.
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2.13 AGREED TAX TREATMENT. Each Security issued hereunder shall provide
that the Company and, by its acceptance of a Security or a beneficial interest
therein, the holder of, and any Person that acquires a beneficial interest in,
such Security agree that for United States federal, state and local tax purposes
it is intended that such Security constitute indebtedness.
2.14 CUSIP NUMBERS. The Company in issuing the Securities may use "CUSIP"
numbers (if then generally in use), and, if so, the Trustee shall use "CUSIP"
numbers in notices of redemption as a convenience to holders of Securities;
provided that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained
in any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee of any change in the CUSIP numbers.
ARTICLE III
REDEMPTION OF SECURITIES
3.1 APPLICABILITY OF ARTICLE. Securities of any series which are
redeemable prior to Stated Maturity shall be redeemable in accordance with their
terms and (except as otherwise specified as contemplated by Section 2.1 for
Securities of any series) in accordance with this Article.
3.2 MAILING OF NOTICE OF REDEMPTION. In case the Company shall desire to
exercise any right to redeem all or, as the case may be, any part of the
Securities of any series pursuant to this Indenture, it shall give notice of
such redemption to holders of the Securities to be redeemed as hereinafter in
this Section provided.
The Company covenants that it will pay to the Trustee or one or more Paying
Agents, by 11:00 a.m., New York City time, on the date of such redemption, a sum
in cash sufficient to redeem on the redemption date all the Securities so called
for redemption at the applicable redemption price, together with any accrued
interest on the Securities to be redeemed to but excluding the date fixed for
redemption.
Notice of redemption shall be given to the holders of Securities to be
redeemed as a whole or in part by mailing by first class mail, postage prepaid,
a notice of such redemption not less than 20 nor more than 60 days prior to the
date fixed for redemption to their last addresses as they shall appear upon the
Register, but failure to give such notice by mailing in the manner herein
provided to the holder of any Security
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designated for redemption as a whole or in part, or any defect therein, shall
not affect the validity of the proceedings for the redemption of any other
Security.
Any notice which is mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the holder
receives the notice.
Each such notice of redemption shall identify the Securities to be redeemed
(including CUSIP numbers) and specify the date fixed for redemption and the
redemption price at which Securities are to be redeemed (or if the redemption
price cannot be calculated prior to the time the notice is required to be given,
the manner of calculation thereof), and shall state that payment of the
redemption price of the Securities or portions thereof to be redeemed will be
made at any of the offices or agencies to be maintained by the Company in
accordance with the provisions of Section 4.2 with respect to the Securities to
be redeemed, upon presentation and surrender of such Securities or portions
thereof, and that, if applicable, interest accrued to the date fixed for
redemption will be paid as specified in said notice and on and after said date
interest thereon will cease to accrue and shall also specify, if applicable, the
conversion price and the date on which the right to convert the Securities will
expire and that holders must comply with the terms of the Securities in order to
convert their Securities. If less than all the Securities of any series are to
be redeemed, the notice of redemption to each holder shall specify such holder's
Securities of such series to be redeemed as a whole or in part. In case any
Security is to be redeemed in part only, the notice which relates to such
Security shall state the portion of the principal amount thereof to be redeemed
(which shall be equal to an authorized denomination for Securities of such
series), and shall state that on and after the redemption date, upon surrender
of such Security, the holder will receive the redemption price in respect to the
principal amount thereof called for redemption and, without charge, a new
Security or Securities of the same series of authorized denominations for the
principal amount thereof remaining unredeemed.
In the case of any redemption at the election of the Company, the Company
shall, at least 45 days prior to the date fixed for redemption (unless a shorter
notice shall be satisfactory to the Trustee), notify the Trustee of such
redemption date, the basis for such redemption and of the principal amount of
Securities of the applicable series to be redeemed. In the case of any
redemption of Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or that is subject to
compliance with conditions provided in the terms of such Securities, the Company
shall furnish the Trustee with an Officers' Certificate evidencing compliance
with such
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restriction or conditions. If less than all the Securities of such series are to
be redeemed, thereupon the Trustee shall select, by lot, or in any manner it
shall deem fair, the Securities of such series to be redeemed as a whole or in
part and shall thereafter promptly notify the Company in writing of the
particular Securities of such series or portions thereof to be redeemed. If the
Securities of any series to be redeemed consist of Securities having different
dates on which the principal or any installment of principal is payable or
different rates of interest, if any, or different methods by which interest may
be determined or have any other different tenor or terms, then the Company may,
by written notice to the Trustee, direct that Securities of such series to be
redeemed shall be selected from among groups of such Securities having specified
tenor or terms and the Trustee shall thereafter select the particular Securities
to be redeemed in the manner set forth in the preceding sentence from among the
group of such Securities so specified.
3.3 WHEN SECURITIES CALLED FOR REDEMPTION BECOME DUE AND PAYABLE. If the
giving of notice of redemption shall have been completed as above provided, the
Securities or portions of Securities specified in such notice shall become due
and payable on the date and at the place or places stated in such notice at the
applicable redemption price, together, if applicable, with any interest accrued
(including any Additional Interest or other interest) to but excluding the date
fixed for redemption, and on and after such date fixed for redemption (unless
the Company shall default in the payment of such Securities at the applicable
redemption price, together with any interest accrued to the date fixed for
redemption) any interest on the Securities or portions of Securities so called
for redemption shall cease to accrue, and, except as provided in Sections 7.5
and 12.4, such Securities shall cease from and after the date fixed for
redemption to be entitled to any benefit or security under this Indenture, and
the holders thereof shall have no right in respect of such Securities except the
right to receive the redemption price thereof and any unpaid interest accrued to
but excluding the date fixed for redemption. On presentation and surrender of
such Securities at said place of payment in said notice specified, such
Securities or portions thereof shall be paid and redeemed by the Company at the
applicable redemption price, together with any interest accrued to but excluding
the date fixed for redemption; provided, however, that, except as otherwise
specified as contemplated by Section 2.1, any regular payment of interest
becoming due on the date fixed for redemption shall be payable to the holders of
the Securities registered as such on the relevant record date as provided in
Article Two hereof. Upon surrender of any Security which is redeemed in part
only, the Company shall execute and the Trustee shall authenticate and deliver
at the expense of the Company a new Security of the same series of like tenor
and terms of authorized denomination in principal amount equal to the unredeemed
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portion of the Security so surrendered; except that if a global Security is so
surrendered, the Company shall execute, and the Trustee shall authenticate and
deliver to the Depositary for such global Security, without service charge, a
global Security in a denomination equal to and in exchange for the unredeemed
portion of the principal of the global Security so surrendered.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal shall, until paid, bear interest from the
date fixed for redemption at the rate borne by or prescribed therefor in the
Security, or, in the case of a Security which does not bear interest, at the
rate of interest set forth therefor in the Security to the extent permitted by
law.
ARTICLE IV
PARTICULAR COVENANTS OF THE COMPANY
The Company covenants as follows:
4.1 PAYMENT OF PRINCIPAL OF AND INTEREST ON SECURITIES.
The Company will duly and punctually pay or cause to be paid the principal of
and interest (including any Additional Interest, Special Interest and/or
Additional Tax Sums due thereon), if any, on each of the Securities at the time
and places and in the manner provided herein and in the Securities. Except as
otherwise specified as contemplated by Section 2.1, if the Securities of any
series bear interest, each installment of interest on the Securities of such
series may at the option of the Company be paid (i) by mailing a check or checks
for such interest payable to the Person entitled thereto pursuant to Section 2.3
to the address of such person as it appears on the Register of the Securities of
such series or (ii) by transfer to an account maintained by the Person entitled
thereto as specified in the Register of Securities, provided that proper
transfer instructions have been received by the record date.
4.2 MAINTENANCE OF OFFICES OR AGENCIES FOR REGISTRATION OF TRANSFER,
EXCHANGE AND PAYMENT OF SECURITIES. So long as any of the Securities shall
remain outstanding, the Company will maintain an office or agency where the
Securities may be presented for registration, conversion, exchange and
registration of transfer as in this Indenture provided, and where notices and
demands to or upon the Company in respect of the Securities or of this Indenture
may be served, and where the Securities may be presented for payment. In case
the Company shall designate and maintain some office or agency other than the
previously designated office or agency, it shall give the Trustee prompt written
notice thereof. In case the Company shall fail to maintain any such
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office or agency or shall fail to give such notice of the location or of any
change in the location thereof to the Trustee, presentations and demands may be
made and notices may be served at the principal office of the Trustee.
In addition to such office or agency, the Company may from time to time
constitute and appoint one or more other offices or agencies for such purposes
with respect to Securities of any series, and one or more paying agents for the
payment of Securities of any series, in such cities or in one or more other
cities, and may from time to time rescind such appointments, as the Company may
deem desirable or expedient, and as to which the Company has notified the
Trustee.
4.3 APPOINTMENT TO FILL A VACANCY IN THE OFFICE OF TRUSTEE. The Company,
whenever necessary to avoid or fill a vacancy in the office of Trustee, will
appoint, in the manner provided in Section 7.10, a Trustee, so that there shall
at all times be a Trustee with respect to each series of Securities hereunder.
4.4 DUTIES OF PAYING AGENT.
(a) If the Company shall appoint a Paying Agent other than the Trustee
with respect to Securities of any series, it will cause such Paying Agent to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section and
Section 12.3,
(i) that it will hold all sums held by it as such agent for the
payment of the principal of or interest, if any, on the Securities of such
series (whether such sums have been paid to it by the Company or by any
other obligor on the Securities of such series) in trust for the benefit of
the holders of the Securities of such series entitled to such principal or
interest and will notify the Trustee of the receipt of sums to be so held,
(ii) that it will give the Trustee notice of any failure by the
Company (or by any other obligor on the Securities of such series) to make
any payment of the principal of or interest on the Securities of such
series when the same shall be due and payable, and
(iii) that it will at any time during the continuance of any
Event of Default, upon the written request of the Trustee, deliver to the
Trustee all sums so held in trust by it.
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(b) Whenever the Company shall have one or more Paying Agents with
respect to the Securities of any series, it will, prior to each due date of the
principal of or any interest on a Security of such series, deposit with a Paying
Agent of such series a sum sufficient to pay the principal or interest so
becoming due, such sum to be held in trust for the benefit of the holders of
Securities of such series entitled to such principal or interest, and (unless
such Paying Agent is the Trustee) the Company will promptly notify the Trustee
of its action or failure so to act.
(c) If the Company shall act as its own Paying Agent with respect to
the Securities of any series, it will, on or before each due date of the
principal of or any interest on a Security of such series, set aside, segregate
and hold in trust for the benefit of the holder of such Security, a sum
sufficient to pay such principal or interest so becoming due and will notify the
Trustee of such action, or any failure by it or any other obligor on the
Securities of such series to take such action and will at any time during the
continuance of any Event of Default, upon the written request of the Trustee,
deliver to the Trustee all sums so held in trust by it.
(d) Anything in this Section to the contrary notwithstanding, the
Company may, at any time, for the purpose of obtaining a satisfaction and
discharge of this Indenture with respect to one or more or all series of
Securities hereunder, or for any other reason, pay or cause to be paid to the
Trustee all sums held in trust for such series by it, or any Paying Agent
hereunder, as required by this Section, such sums are to be held by the Trustee
upon the trust herein contained.
(e) Anything in this Section to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section is subject to the
provisions of Sections 12.3 and 12.4.
4.5 FURTHER ASSURANCES. From time to time whenever reasonably demanded by
the Trustee, the Company will make, execute and deliver or cause to be made,
executed and delivered any and all such further and other instruments and
assurances and take all such further action as may be reasonably necessary or
proper to carry out the intention of or to facilitate the performance of the
terms of this Indenture or to secure the rights and remedies hereunder of the
holders of the Securities of any series.
4.6 OFFICERS' CERTIFICATE AS TO DEFAULTS; NOTICES OF CERTAIN DEFAULTS.
The Company will, so long as any of the Securities are outstanding, deliver to
the Trustee no later than 120 days after the end of each calendar year,
beginning with the year 1998, a certificate signed by the Company's principal
executive officer, principal financial officer
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or principal accounting officer stating that a review has been made under his or
her supervision of the activities of the Company during such year and of the
performance under this Indenture and, to the best of his or her knowledge, the
Company has complied with all conditions and covenants under this Indenture
throughout such calendar year, or if there has been a default in the fulfillment
of any such obligation, specifying each such default known and the nature and
status thereof. For purposes of this Section, such compliance shall be
determined without regard to any period of grace or requirement of notice
provided under this Indenture. In addition, the Company shall give the notice to
the Trustee as and when required by the fourth paragraph of Section 14.1.
4.7 WAIVER OF COVENANTS. The Company may omit in any particular instance
to comply with any covenant or condition specifically contained in this
Indenture for the benefit of one or more series of Securities, if before the
time for such compliance the holders of a majority in principal amount of the
Securities of all series affected (all series voting as one class) at the time
outstanding (determined as provided in Section 8.4) shall waive such compliance
in such instance, but no such waiver shall extend to or affect such covenant or
condition except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the duties of the Trustee
in respect of any such covenant or condition shall remain in full force and
effect.
4.8 ADDITIONAL TAX SUMS. In the case of the Securities of a series issued
to a DRI Trust, so long as no Event of Default has occurred and is continuing
and except as otherwise specified as contemplated by Section 2.1 or Section 2.2,
in the event that (i) a DRI Trust is the holder of all of the Outstanding
Securities of such series, (ii) a Tax Event in respect of such DRI Trust shall
have occurred and be continuing and (iii) the Company shall not have (a)
redeemed the Securities of such series or (b) terminated such DRI Trust pursuant
to the termination provisions of the related Trust Agreement, the Company shall
pay to such DRI Trust (and any permitted successor or assign under the related
Trust Agreement) for so long as such DRI Trust (or its permitted successor or
assignee) is the registered holder of any Securities of such series, such
additional amounts as may be necessary in order that the amount of Distributions
then due and payable by such DRI Trust on the related Preferred Securities and
Common Securities that at any time remain outstanding in accordance with the
terms thereof shall not be reduced as a result of any additional taxes, duties
and other governmental charges to which such DRI Trust has become subject as a
result of such Tax Event (but not including withholding taxes imposed on holders
of such Preferred Securities and Common Securities) (the "Additional Tax Sums").
Whenever in this Indenture or the Securities there is a reference in any context
to the payment of principal of or interest on the Securities, such
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reference shall be deemed to include payment of the Additional Tax Sums provided
for in this paragraph to the extent that, in such context, Additional Tax Sums
are, were or would be payable in respect thereof pursuant to the provisions of
this Section and express reference to the payment of Additional Tax Sums (if
applicable) in any provisions hereof shall not be construed as excluding
Additional Tax Sums in those provisions hereof where such express reference is
not made; provided, however, that the deferral of the payment of interest
pursuant to Section 2.10 or the Securities shall not defer the payment of any
Additional Tax Sums that may be then due and payable.
4.9 ADDITIONAL COVENANTS. The Company covenants and agrees with each
holder of Securities of a series issued to a DRI Trust that it shall not (i)
declare or pay any dividends or distributions on, or redeem, purchase, acquire,
or make a liquidation payment with respect to, any shares of the Company's
Capital Stock (which includes Common Stock and preferred stock), or (ii) make
any payment of principal of or interest or premium, if any, on or repay,
repurchase or redeem any debt securities of the Company that rank on a parity
with or junior to the Securities of such series or make any guarantee payments
with respect to any DRI Guarantee or other guarantee by the Company of debt
securities of any Subsidiary that by its terms ranks on a parity with or junior
to the Securities of such series (other than (a) dividends or distributions in
Common Stock; (b) any declaration of a dividend in connection with the
implementation of a Rights Plan, the issuance of any Capital Stock of any class
or series of preferred stock of the Company under any Rights Plan or the
redemption or repurchase of any rights distributed pursuant to a Rights Plan;
(c) payments under any DRI Guarantee relating to the Preferred Securities issued
by the DRI Trust holding the Securities of such series; and (d) purchases of
Common Stock related to the issuance of Common Stock or rights under any of the
Company's benefit plans for its directors, officers, employees, consultants or
advisors) if at such time (i) there shall have occurred any event of which the
Company has actual knowledge that (a) with the giving of notice or the lapse of
time or both, would constitute an Event of Default hereunder and (b) in respect
of which the Company shall not have taken reasonable steps to cure, (ii) the
Company shall be in default with respect to its payment of any obligations under
the related DRI Guarantee or (iii) the Company shall have given notice of its
election to begin an Extension Period as provided in Section 2.10 and shall not
have rescinded such notice, or such Extension Period, or any extension thereof,
shall be continuing.
The Company also covenants with each holder of Securities of a series
issued to a DRI Trust (i) to maintain directly or indirectly 100% ownership of
the Common Securities of such DRI Trust; provided, however, that any permitted
successor or assignee of the Company hereunder may succeed to the Company's
ownership of such Common Securities, (ii) not
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to voluntarily terminate, wind up or liquidate such DRI Trust, except (a) in
connection with a prepayment in full of the Securities or a distribution of the
Securities of such series to the holders of Preferred Securities in liquidation
of such DRI Trust or (b) in connection with certain mergers, consolidations or
amalgamations permitted by the relevant Trust Agreement and (iii) to use its
reasonable efforts, consistent with the terms and provisions of such Trust
Agreement, to cause such DRI Trust to remain classified as a grantor trust and
not an association taxable as a corporation for United States federal income tax
purposes.
4.10 CALCULATION OF ORIGINAL ISSUE DISCOUNT. The Company shall file with
the Trustee promptly at the end of each calendar year (i) a written notice
specifying the amount of original issue discount (including daily rates and
accrual periods) accrued on outstanding Securities as of the end of such year
and (ii) such other specific information relating to such original issue
discount as may then be relevant under the Internal Revenue Code of 1986, as
amended from time to time.
ARTICLE V
SECURITYHOLDERS' LISTS AND REPORTS BY THE COMPANY
AND THE TRUSTEE
5.1 COMPANY TO FURNISH TRUSTEE INFORMATION AS TO THE NAMES AND ADDRESSES
OF SECURITYHOLDERS. The Company covenants and agrees that it will furnish or
cause to be furnished to the Trustee, semiannually not more than 5 days after
each record date for payment of interest, and at such other times as the Trustee
may request in writing within 30 days after receipt by the Company of any such
request, a list in such form as the Trustee may reasonably require containing
all information in the possession or control of the Company, or any Paying Agent
or any registrar of the Securities of each series, other than the Trustee, as to
the names and addresses of the holders of Securities of such series obtained (in
the case of each list other than the first list) since the date as of which the
next previous list was furnished; provided, however, that if the Trustee shall
be the registrar of the Securities of such series, no such list need be
furnished; and provided further that the Company shall not be obligated to
provide such a list of Securityholders at any time the list of Securityholders
does not differ from the most recent list of Securityholders given to the
Trustee by the Company. Any such list may be dated as of a date not more than
fifteen days prior to the time such information is furnished or caused to be
furnished, and need not include information received after such date.
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5.2 TRUSTEE TO PRESERVE INFORMATION AS TO THE NAMES AND ADDRESSES OF
SECURITYHOLDERS RECEIVED BY IT.
The Trustee shall comply with the obligations imposed upon it pursuant to
Section 312 of the Trust Indenture Act.
Each and every holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any Paying Agent nor any registrar shall be held accountable by reason of
the disclosure of any information as to the names and addresses of the holders
of Securities in accordance with Section 312(b) of the Trust Indenture Act,
regardless of the source from which such information was derived, and that the
Trustee shall not be held accountable by reason of mailing any material pursuant
to a request made under Section 312(b) of the Trust Indenture Act.
5.3 ANNUAL AND OTHER REPORTS TO BE FILED BY COMPANY WITH TRUSTEE.
(a) The Company covenants and agrees to file with the Trustee within
fifteen days after the Company is required to file the same with the Commission,
copies of the annual reports and of the information, documents and other reports
(or copies of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the Company may be
required to file with the Commission pursuant to Section 13 or Section 15(d) of
the Exchange Act; or, if the Company is not required to file information,
documents or reports pursuant to either of such Sections, then it will file with
the Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the supplementary and
periodic information, documents and reports which may be required pursuant to
Section 13 of the Exchange Act in respect of a security listed and registered on
a national securities exchange as may be prescribed from time to time in such
rules and regulations.
(b) The Company covenants and agrees to file with the Trustee and the
Commission, in accordance with the rules and regulations prescribed from time to
time by the Commission, such additional information, documents, and reports with
respect to compliance by the Company with the conditions and covenants provided
for in this Indenture as may be required from time to time by such rules and
regulations.
(c) The Company covenants and agrees to transmit to the holders of
Securities within 30 days after the filing thereof with the Trustee, in the
manner and to the extent provided in subsection (c) of Section 5.4 with respect
to reports pursuant to subsection (a) of said Section 5.4, such summaries of any
information, documents and reports
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required to be filed by the Company pursuant to subsections (a) and (b) of this
Section as may be required by rules and regulations prescribed from time to time
by the Commission.
(d) Delivery of such reports, information and documents to the Trustee
is for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
5.4 TRUSTEE TO TRANSMIT ANNUAL REPORT TO SECURITYHOLDERS.
(a) On or before November 15, 1998, and on or before November 15 in
every year thereafter, if and so long as any Securities are outstanding
hereunder, the Trustee shall transmit to the Securityholders as hereinafter in
this Section provided, a brief report dated as of the preceding September 15
with respect to any of the following events which may have occurred within the
previous twelve (12) months (but if no such event has occurred within such
period no report need be transmitted):
(i) Any change to its eligibility under Section 7.9, and its
qualifications under Section 7.8;
(ii) The creation of or any material change to a relationship
which, with the occurrence of an Event of Default, would create a
conflicting interest within the meaning of the Trust Indenture Act;
(iii) The character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding the making
thereof) made by the Trustee (as such) which remain unpaid on the date of
such report, and for the reimbursement of which it claims or may claim a
lien or charge prior to that of the Securities of any series on any
property or funds held or collected by it as Trustee, except that the
Trustee shall not be required (but may elect) to report such advances if
such advances so remaining unpaid aggregate not more than one-half of one
percent of the principal amount of the Securities of all series outstanding
as of the date of such report;
(iv) Any change to the amount, interest rate, and maturity date
of all other indebtedness owing by the Company (or by any other obligor on
the Securities) to the Trustee in its individual capacity, on the date of
such report, with a
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brief description of any property held as collateral security therefor,
except indebtedness based upon a creditor relationship arising in any
manner described in paragraph (2), (3), (4), or (6) of subsection (b) of
Section 311 of the Trust Indenture Act;
(v) Any change to the property and funds, if any, physically
in the possession of the Trustee (as such) on the date of such report;
(vi) Any additional issue of Securities which the Trustee has
not previously reported to Securityholders; and
(vii) Any action taken by the Trustee in the performance of its
duties under this Indenture which it has not previously reported to
Securityholders and which in its opinion materially affects the Securities
of any series, except action in respect of a default, notice of which has
been or is to be withheld by it in accordance with the provisions of
Section 6.7.
(b) The Trustee shall transmit to the Securityholders, as hereinafter
provided, a brief report with respect to the character and amount of any
advances (and if the Trustee elects so to state, the circumstances surrounding
the making thereof) made by the Trustee (as such) since the date of the last
report transmitted pursuant to the provisions of subsection (a) of this Section
(or if such report has not yet been so transmitted, since the date of execution
of this Indenture), for the reimbursement of which it claims or may claim a lien
or charge prior to that of the Securities of any series on property or funds
held or collected by it as Trustee, and which it has not previously reported
pursuant to this subsection, except that the Trustee shall not be required (but
may elect) to report such advances if such advances so remaining unpaid
aggregate not more than 10 percent of the principal amount of Securities of all
series outstanding as of the date of such report, such report to be transmitted
within 90 days after such time.
(c) Reports pursuant to this Section shall be transmitted by mail to
all holders of Securities of any series, as the names and addresses of such
holders shall appear upon the Register of the Securities of such series.
(d) A copy of each such report shall, at the time of such
transmission to Securityholders, be filed by the Trustee with each stock
exchange upon which the Securities of any series are listed and also with the
Commission. The Company will promptly notify the Trustee when and as the
Securities of any series become listed on any stock exchange.
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ARTICLE VI
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON
EVENT OF DEFAULT
6.1 EVENTS OF DEFAULT DEFINED. The term "Event of Default" whenever used
herein with respect to Securities of any series shall mean any one of the
following events:
(a) default in the payment of any installment of interest upon any of
the Securities of such series as and when the same shall become due and payable,
and continuance of such default for a period of 30 days (subject to the deferral
of any due date in the case of an Extension Period); or
(b) default in the payment of all or any part of the principal of any
of the Securities of such series as and when the same shall become due and
payable whether upon Maturity, upon any redemption, by declaration or otherwise;
or
(c) failure on the part of the Company duly to observe or perform in
any material respect any covenants or agreements (other than covenants to pay
interest, principal and premium, which are subject to subsections (a) and (b)
above of this Section) on the part of the Company in the Securities or in this
Indenture (including any supplemental indenture or pursuant to any Officers'
Certificate as contemplated by Section 2.1) which are for the benefit of the
Securities of such series, for a period of 90 days after there has been given,
by registered or certified mail, to the Company by the Trustee, or to the
Company and the Trustee by the holders of not less than 25% in principal amount
of the Securities of such series and all other series so benefited (all series
voting as one class) at the time outstanding under this Indenture a written
notice specifying such failure and stating that such notice is a "Notice of
Default" hereunder, unless the Trustee, or the Trustee and the Holders of a
principal amount of Securities of such series not less than the principal amount
of Securities the Holders of which gave such notice, as the case may be, shall
agree in writing to an extension of such period prior to its expiration;
provided, however, that the Trustee or the Trustee and the Holders of such
principal amount of Securities of such series, as the case may be, shall be
deemed to have agreed to an extension of such period if corrective action is
initiated by the Company within such period and is being diligently pursued; or
(d) the commencement by the Company of a voluntary case under Chapter
7 or Chapter 11 of the federal Bankruptcy Code or any other similar state or
federal law now or hereafter in effect, or the consent
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by the Company to the entry of a decree or order for relief in an involuntary
case under any such law, or the consent by the Company to the appointment of or
the taking possession by a liquidating agent or committee, conservator or
receiver for the Company or any substantial part of its property, or the general
assignment by the Company for the benefit of its creditors, or the admission by
the Company in writing of its inability to pay its debts as they become due; or
(e) the entry of a decree or order for relief by a court having
jurisdiction in the premises in respect of the Company in an involuntary case
under Chapter 7 or Chapter 11 of the federal Bankruptcy Code or any other
similar state or federal law now or hereafter in effect, and the continuance of
any such decree or order unstayed and in effect for a period of 60 days, or the
appointment of or the taking possession by a liquidating agent or committee,
conservator or receiver for the Company or any substantial part of its property,
and the continuance of any such appointment unstayed and in effect for a period
of 60 days.
If an Event of Default shall have occurred and be continuing, unless the
principal of all the Securities shall have already become due and payable,
either the Trustee or (i) the holders of not less than 25% in principal amount
of all the then outstanding Securities of the series as to which such Event of
Default under clauses 6.1(a), 6.1(b) or 6.1(c) has occurred (each such series
voting as a separate class in the case of an Event of Default under clauses
6.1(a) or 6.1(b), and all such series voting as one class in the case of an
Event of Default under clauses 6.1(c)), or (ii) the holders of not less than 25%
in principal amount of all of the outstanding Securities in the case of an Event
of Default under clauses 6.1(d) or 6.1(e), by notice in writing to the Company
(and to the Trustee if given by Securityholders) may declare the principal
amount (or if Securities of any series are Original Issue Discount Securities,
such portion of the principal amount as may be specified in the terms of such
series) of all the Securities of such series in the case of an Event of Default
under clauses 6.1(a), 6.1(b) or 6.1(c) or of all the outstanding Securities in
the case of an Event of Default under clauses 6.1(d) or 6.1(e), in each case
together with any accrued interest, to be due and payable immediately, and upon
any such declaration the same shall become and shall be immediately due and
payable; provided, however, that in the case of the Securities of a series
issued to a DRI Trust, if upon an Event of Default, the Trustee or the holders
of at least 25% in principal amount of the outstanding Securities of such series
fail to declare the principal of all the Securities of that series to be
immediately due and payable, the holders of at least 25% in aggregate
liquidation amount of the corresponding series of Preferred Securities then
outstanding shall have such right by a notice in writing to the Company and the
Trustee.
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The foregoing provisions, however, are subject to the condition that if, at
any time after the principal amount (or specified portion thereof) of the
Securities of any one or more series (or of all the Securities, as the case may
be) shall have been so declared due and payable, and before any judgment or
decree for the payment of moneys due shall have been obtained or entered as
hereinafter provided, the Company shall pay or shall deposit with the Trustee a
sum sufficient to pay all matured installments of interest upon all the
Securities of such series (or upon all the Securities, as the case may be) and
the principal of any and all Securities of such series (or of any and all the
Securities, as the case may be) which shall have become due otherwise than by
declaration (with interest on overdue installments of interest to the extent
permitted by law and on such principal at the rate or rates of interest borne
by, or prescribed therefor in, the Securities of each such series to the date of
such payment or deposit) and the amounts payable to the Trustee under Section
7.6, and any and all defaults under the Indenture with respect to Securities of
such series (or all Securities, as the case may be), other than the nonpayment
of principal of and any accrued interest on Securities of such series (or any
Securities, as the case may be) which shall have become due by declaration,
shall have been cured, remedied or waived as provided in Section 6.6, then and
in every such case the holders of a majority in principal amount of the
Securities of such series (or of all the Securities, as the case may be) then
outstanding and as to which such Event of Default has occurred (such series or
all series voting as one class, if more than one series are so entitled) by
written notice to the Company and to the Trustee, may rescind and annul such
declaration and its consequences. In the case of Securities issued to a DRI
Trust, should the holders of such Securities fail to annul such declaration and
waive such default, the holders of a majority in aggregate liquidation
preference of related Preferred Securities shall have such right; but no such
rescission and annulment shall extend to or shall affect any subsequent default,
or shall impair any right consequent thereon.
In case the Trustee, any holder of Securities or any holder of Preferred
Securities shall have proceeded to enforce any right under this Indenture and
such proceedings shall have been discontinued or abandoned because of such
rescission or annulment or for any other reason or shall have been determined
adversely to the Trustee, such holder of Securities or such holder of Preferred
Securities then and in every such case the Company, the Trustee, the holders of
the Securities of such series (or of all the Securities, as the case may be) and
the holders of Preferred Securities shall be restored respectively to their
former positions and rights hereunder, and all rights, remedies and powers of
the Company and the Trustee, the holders of the Securities of such series (or of
all the Securities, as the case may be) and the holders of Preferred Securities
shall continue as though no such proceedings had been taken.
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6.2 COVENANT OF COMPANY TO PAY TO TRUSTEE WHOLE AMOUNT DUE ON SECURITIES
ON DEFAULT IN PAYMENT OF INTEREST OR PRINCIPAL. The Company covenants that (1)
in case default shall be made in the payment of any installment of interest on
any of the Securities of any series as and when the same shall become due and
payable, and such default shall have continued for a period of 30 days (subject
to the deferral of any due date in the case of an Extension Period), or (2) in
case default shall be made in the payment of all or any part of the principal of
any of the Securities of any series as and when the same shall become due and
payable, whether upon Maturity, upon any redemption, by declaration or
otherwise, then, upon demand of the Trustee, the Company will pay to the
Trustee, for the benefit of the holders of the Securities of such series, the
whole amount that then shall have become due and payable on all such Securities
of such series for principal or interest, or both, as the case may be, with
interest upon the overdue principal and installments of interest (to the extent
permitted by law) at the rate or rates of interest borne by or prescribed
therefor in the Securities of such series; and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including reasonable compensation to the Trustee, its agents and
counsel, and any expenses or disbursements reasonably incurred, and all
reasonable advances made hereunder by the Trustee, its agents, attorneys and
counsel, except as a result of its negligence or bad faith.
In case the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any actions or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the Company or any other obligor upon such
Securities, and collect in the manner provided by law out of the property of the
Company or any other obligor upon such Securities wherever situated the moneys
adjudged or decreed to be payable.
The Trustee shall be entitled and empowered, either in its own name or as
trustee of an express trust, or as attorney-in-fact for the holders of the
Securities of any series, or in any one or more of such capacities (irrespective
of whether the principal of the Securities of such series shall then be due and
payable, whether upon Maturity, upon any redemption, by declaration or
otherwise, and irrespective of whether the Trustee shall have made any demand
pursuant to the provisions of this Section) to file and prove a claim or claims
for the whole amount of principal (or, if the Securities of such series are
Original Issue Discount Securities, such portion of the principal amount as may
be specified in the terms of such series) and interest owing and unpaid in
respect of the Securities of such series and to file such other documents
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as may be necessary or advisable in order to have the claims of the Trustee
(including any claim for reasonable compensation of the Trustee, its agents and
counsel, and for reimbursement of all expenses and disbursements reasonably
incurred, and all reasonable advances made hereunder by the Trustee, its agents
and counsel, except as a result of its negligence or bad faith) and of the
holders of the Securities of such series allowed in any equity receivership,
insolvency, bankruptcy, liquidation, arrangement, readjustment, reorganization
or any other judicial proceedings relative to the Company or any other obligor
on the Securities of such series or their creditors, or their property. The
Trustee is hereby irrevocably appointed (and the successive respective holders
of the Securities of each series by taking and holding the same shall be
conclusively deemed to have so appointed the Trustee) the true and lawful
attorney-in-fact of the respective holders of the Securities of such series,
with authority to make and file in the respective names of the holders of the
Securities of such series, or on behalf of the holders of the Securities of such
series as a class, any proof of debt, amendment of proof of debt, claim,
petition or other document in any such proceeding and to receive payment of any
sums becoming distributable on account thereof, and to execute any such other
papers and documents and to do and perform any and all such acts and things for
and on behalf of such holders of the Securities of such series, as may be
necessary or advisable in the opinion of the Trustee in order to have the
respective claims of the Trustee and of the holders of the Securities of such
series allowed in any such proceeding, and to receive payment of or on account
of such claims and to distribute the same, and any receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the holders, to pay to the Trustee any amount due to it
under Section 7.6; provided, however, that nothing herein shall be deemed to
authorize the Trustee to authorize or consent to or vote for or accept or adopt
on behalf of any Securityholder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities of such series or the rights
of any holder thereof, or to authorize the Trustee to vote in respect of the
claim of any holder of Securities of such series in any such proceeding.
All rights of action and of asserting claims under this Indenture, or under
any of the Securities of any series, may be enforced by the Trustee without the
possession of any of the Securities of such series, or the production thereof on
any trial or other proceeding relative thereto, and any such suit or proceeding
instituted by the Trustee, shall be brought in its own name as trustee of an
express trust, and any recovery of judgment shall be, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances of
such
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Trustee, its agents and counsel, for the ratable benefit of the holders of the
Securities of such series.
6.3 APPLICATION OF MONEYS COLLECTED BY TRUSTEE. Any moneys collected by
the Trustee pursuant to Section 6.2 shall be applied in the order following, at
the date or dates fixed by the Trustee for the distribution of such moneys, upon
presentation of the several Securities in respect of which moneys have been
collected, and stamping thereon the payment, if only partially paid, and upon
surrender thereof if fully paid:
First: To the payment of reasonable costs and expenses of collection, and
of all amounts payable to the Trustee under Section 7.6;
Second: In case the principal of the outstanding Securities in respect of
which moneys have been collected shall not have become due and be unpaid,
to the payment of any unpaid interest on such Securities, in the order of
the maturity of the installments of such interest, with interest upon the
overdue installments of interest (so far as permitted by law and to the
extent that such interest has been collected by the Trustee) at the rate or
rates of interest borne by, or prescribed therefor in, such Securities,
such payments to be made ratably to the persons entitled thereto, without
discrimination or preference;
Third: In case the principal of the outstanding Securities in respect of
which such moneys have been collected shall have become due and be unpaid,
whether upon Maturity, upon any redemption, by declaration or otherwise, to
the payment of the whole amount then owing and unpaid upon such Securities
for principal and interest, if any, with interest on the overdue principal
and any installments of interest (so far as permitted by law and to the
extent that such interest has been collected by the Trustee) at the rate or
rates of interest borne by, or prescribed therefor in, such Securities; and
in case such moneys shall be insufficient to pay in full the whole amount
so due and unpaid upon such Securities, then to the payment of such
principal and interest, without preference or priority of principal over
interest, or of interest over principal, or of any installment of interest
over any other installment of interest, or of any Security over any other
Security, ratably to the aggregate of such unpaid principal and interest;
and
Fourth: To the payment of the remainder, if any, to the Company, its
successors or assigns, or to whomsoever may be lawfully entitled to receive
the same, or as a court of competent jurisdiction may direct.
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6.4 LIMITATION ON SUITS BY HOLDERS OF SECURITIES. No holder of any
Security of any series shall have any right by virtue or by availing of any
provision of this Indenture to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Indenture or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
such holder previously shall have given to the Trustee written notice of an
Event of Default and of the continuance thereof, as hereinbefore provided, and
unless also the holders of not less than a majority in principal amount of all
the Securities at the time outstanding (considered as one class) shall have made
written request upon the Trustee to institute such action, suit or proceeding in
its own name as Trustee hereunder and shall have offered to the Trustee such
reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby, and the Trustee, for 60 days
after its receipt of such notice, request and offer of indemnity, shall have
neglected or refused to institute any such action, suit or proceeding and no
direction inconsistent with such written request shall have been given to the
Trustee pursuant to Section 6.6; it being understood and intended, and being
expressly covenanted by the taker and holder of every Security with every other
taker and holder and the Trustee, that no one or more holders of Securities
shall have any right in any manner whatever by virtue or by availing of any
provision of this Indenture to affect, disturb or prejudice the rights of the
holders of any other of such Securities, or to obtain or seek to obtain priority
over or preference to any other such holder, or to enforce any right under this
Indenture, except in the manner herein provided and for the equal, ratable and
common benefit of all holders of Securities. For the protection and enforcement
of the provisions of this Section, each and every Securityholder and the Trustee
shall be entitled to such relief as can be given either at law or in equity.
Notwithstanding any other provisions in this Indenture, the right of any
holder of any Security to receive payment of the principal of and interest on
such Security, on or after the respective due dates expressed in such Security
(or, in the case of redemption on or after the date fixed for redemption), or to
institute suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of such
holder.
6.5 ON DEFAULT TRUSTEE MAY TAKE APPROPRIATE ACTION; DIRECT ACTION. In
case of an Event of Default hereunder the Trustee may in its discretion proceed
to protect and enforce the rights vested in it by this Indenture by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any of such rights, either by suit in equity or by action at
law or by proceeding in bankruptcy or otherwise, whether for the specific
enforcement of any covenant or agreement contained in this Indenture or in aid
of the exercise of any
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power granted in this Indenture, or to enforce any other legal or equitable
right vested in the Trustee by this Indenture or by law. Except as provided in
the last paragraph of Section 2.7, all powers and remedies given by this Article
to the Trustee or to the Securityholders shall, to the extent permitted by law,
be deemed cumulative and not exclusive of any thereof or of any other powers and
remedies available to the Trustee or the holders of the Securities, by judicial
proceedings or otherwise, to enforce the performance or observance of the
covenants and agreements contained in this Indenture, and no delay or omission
of the Trustee, of any holder of any of the Securities or any holder of
Preferred Securities to exercise any right or power accruing upon any Event of
Default occurring and continuing as aforesaid shall impair any such right or
power, or shall be construed to be a waiver of any such default or an
acquiescence therein; and, subject to the provisions of Section 8.4, every power
and remedy given by this Article or by law to the Trustee, to the
Securityholders or the holders of Preferred Securities may be exercised from
time to time, and as often as shall be deemed expedient, by the Trustee, by the
Securityholders or by the holders of Preferred Securities, as the case may be.
In the case of Securities of a series issued to a DRI Trust, any holder of
the corresponding series of Preferred Securities issued by such DRI Trust shall
have the right, upon the occurrence of an Event of Default described in Section
6.1(a) or (b) above, to institute a suit directly against the Company (a "Direct
Action") for enforcement of payment to such holder of principal of (including
premium, if any) and interest (including any Additional Interest) on the
Securities having a principal amount equal to the aggregate liquidation amount
of such Preferred Securities of the corresponding series held by such holder.
Notwithstanding any payments made to a holder of such Preferred Securities by
the Company pursuant to a Direct Action initiated by such holder, the Company
shall remain obligated to pay the principal of or interest due on the
Securities, and the Company shall be subrogated to the rights of the holder of
such Preferred Securities with respect to payments on the Preferred Securities
to the extent of any payments made by the Company to such holder in any Direct
Action.
6.6 RIGHTS OF HOLDERS OF MAJORITY IN PRINCIPAL AMOUNT OF SECURITIES TO
DIRECT TRUSTEE AND TO WAIVE DEFAULT. The holders of at least a majority in
principal amount of the Securities of any one or more series or of all the
Securities, as the case may be (voting as one class), at the time outstanding
(determined as provided in Section 8.4) shall have the right to direct the time,
method, and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee under this
Indenture with respect to such one or more series; provided, however, that
subject to Section 7.1, the Trustee shall have the right to decline to follow
any such
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direction if the Trustee being advised by Opinion of Counsel determines that the
action so directed may not lawfully be taken, or if the Trustee in good faith
shall, by a Responsible Officer or Officers of the Trustee, determine that the
proceedings so directed would be illegal or involve it in personal liability or
be unduly prejudicial to the rights of Securityholders of such one or more
series not parties to such direction, and provided further that nothing in this
Indenture shall impair the right of the Trustee to take any action deemed proper
by the Trustee and which is not inconsistent with such direction by such
Securityholders of such one or more series. The holders of at least a majority
in principal amount of the Securities of all series as to which an Event of
Default hereunder has occurred (all series voting as one class) at the time
outstanding (determined as provided in Section 8.4) and, in the case of any
Preferred Securities of a series issued to a DRI Trust, the holders of at least
a majority in aggregate liquidation amount of the Preferred Securities issued by
such DRI Trust, may waive any past default hereunder with respect to such series
and its consequences, except a default in the payment of the principal of or
interest on any of such Securities or Preferred Securities or in respect of a
covenant or provision hereof which under Article Ten cannot be modified or
amended without the consent of the holder of each Security so affected. Upon any
such waiver, such default shall cease to exist and any Event of Default arising
therefrom shall be deemed to have been cured for every purpose of this
Indenture, but no such waiver shall extend to any subsequent or other default or
impair any right consequent thereon. Any such waiver shall be deemed to be on
behalf of the holders of all the Securities of such series or, in the case of a
waiver by holders of Preferred Securities issued by such DRI Trust, on behalf of
all holders of Preferred Securities issued by such DRI Trust.
6.7 TRUSTEE TO GIVE NOTICE OF DEFAULTS KNOWN TO IT, BUT MAY WITHHOLD IN
CERTAIN CIRCUMSTANCES. The Trustee shall, within 10 Business Days after the
occurrence of any default hereunder with respect to the Securities of any
series, give to the holders of the Securities of such series in the manner and
to the extent provided in subsection (c) of Section 5.4 with respect to reports
pursuant to subsection (a) of said Section 5.4, notice of such default actually
known to the Trustee unless such default shall have been cured, remedied or
waived before the giving of such notice (the term "default" for the purposes of
this Section being hereby defined to be the events specified in clauses (c), (d)
and (e) of Section 6.1 and default in the payment of the principal of or
interest on Securities of any series, not including any periods of grace
provided for therein, and irrespective of the giving of written notice specified
therein); provided, however, that, except in the case of default in the payment
of the principal of or interest on any of the Securities of such series, the
Trustee shall be protected in withholding such notice if and so long as the
Board of Directors, the Executive Committee, or a Trust
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Committee of directors and/or Responsible Officers of the Trustee in good faith
determines that the withholding of such notice is in the interest of the holders
of the Securities of such series.
6.8 REQUIREMENT OF AN UNDERTAKING TO PAY COSTS IN CERTAIN SUITS UNDER THE
INDENTURE OR AGAINST THE TRUSTEE. All parties to this Indenture agree, and each
holder of any Security by his acceptance thereof shall be deemed to have agreed,
that any court may in its discretion require, in any suit for the enforcement of
any right or remedy under this Indenture, or in any suit against the Trustee for
any action taken or omitted by it as Trustee, the filing by any party litigant
in such suit of an undertaking to pay the costs of such suit, and that such
court may in its discretion assess reasonable costs, including reasonable
attorneys' fees and expenses, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses made by such
party litigant; but the provisions of this Section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any holder of Securities of
any series, or group of such Securityholders, holding in the aggregate more than
10 percent in principal amount of all the Securities (all series considered as
one class) outstanding, or to any suit instituted by any Securityholder for the
enforcement of the payment of the principal of or interest on any Security, on
or after the due date expressed in such Security (or in the case of any
redemption, on or after the date fixed for redemption).
ARTICLE VII
CONCERNING THE TRUSTEE
7.1 UPON EVENT OF DEFAULT OCCURRING AND CONTINUING, TRUSTEE SHALL EXERCISE
POWERS VESTED IN IT, AND USE SAME DEGREE OF CARE AND SKILL IN THEIR EXERCISE, AS
A PRUDENT MAN WOULD USE. The Trustee, prior to the occurrence of an Event of
Default and after the curing, remedying or waiving of all Events of Default
which may have occurred, undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture. In case an Event of Default
has occurred (which has not been cured, remedied or waived) the Trustee shall
exercise such of the rights and powers vested in it by this Indenture, and use
the same degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
No provision of this Indenture shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act,
or its own willful misconduct; provided, however, that
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(a) Prior to the occurrence of an Event of Default and after the
curing, remedying or waiving of all Events of Default which may have occurred:
(i) the duties and obligations of the Trustee shall be
determined solely by the express provisions of this Indenture and the
Trustee shall not be liable except for the performance of such duties and
obligations as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(ii) in the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture; but in the case of any such certificates or opinions which
by any provision hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this Indenture;
(b) The Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer or Officers of the Trustee, unless it shall
be proved that the Trustee was negligent in ascertaining the pertinent facts
upon which such judgment was made;
(c) The Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction of
the holders of Securities pursuant to Section 6.6 relating to the time, method
and place of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred upon the Trustee, under this
Indenture;
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section 7.1; and
(e) None of the provisions contained in this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder or in the exercise
of any of its rights or powers, if there is reasonable ground for believing that
the repayment of such funds or adequate indemnity against such risk or liability
is not reasonably assured to it.
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7.2 RELIANCE ON DOCUMENTS, OPINIONS, ETC. Except as otherwise provided in
Section 7.1:
(a) The Trustee may rely and shall be fully protected in acting or
refraining from acting in good faith upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, appraisal, bond, debenture, note, other evidence of indebtedness or other
paper or document reasonably believed by it to be genuine and to have been
signed, sent or presented by the proper party or parties;
(b) Any request, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by an Officers' Certificate (unless other
evidence in respect thereof be herein specifically prescribed); and any
Resolution of the Company may be evidenced to the Trustee by a copy thereof
certified by the Corporate Secretary or an Assistant Corporate Secretary of the
Company;
(c) The Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel with respect to legal matters
shall be full and complete authorization and protection in respect of any action
taken, suffered or omitted to be taken by it hereunder in good faith and in
accordance with such advice or Opinion of Counsel;
(d) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Securityholders pursuant to this Indenture, unless such
Securityholders shall have offered to the Trustee such adequate security or
indemnity against the costs, expenses (including attorneys' fees and expenses)
and liabilities that might be incurred by it in complying with such request or
direction;
(e) The Trustee shall not be liable for any action taken or omitted to
be taken by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture;
(f) The Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, approval, bond,
debenture, note, other evidence of indebtedness or other paper or document,
unless requested in writing to do so by the holders of Securities pursuant to
Section 6.6, but the Trustee may make such further inquiry or investigation into
such facts or matters as it may see fit; provided, however, that if the payment
within a reasonable time to the Trustee of the costs, expenses or
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liabilities likely to be incurred by it in the making of such investigation is,
in the opinion of the Trustee, not reasonably assured to the Trustee by the
security afforded to it by the terms of this Indenture, the Trustee may require
adequate indemnity against such costs, expenses or liabilities as a condition to
so proceeding; and provided further, that nothing in this subsection (f) shall
require the Trustee to give the Securityholders any notice other than that
required by Section 6.7. The reasonable expense of every such examination shall
be paid by the Company or, if paid by the Trustee, shall be repaid by the
Company upon demand;
(g) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed by it hereunder;
provided, however, that the Trustee shall be responsible for its own negligence
or recklessness with respect to the selection of any such agent or attorney;
(h) The Trustee shall be under no responsibility for the approval by
it in good faith of any expert for any of the purposes expressed in this
Indenture; and
(i) The Trustee shall not be deemed to have notice of any Event of
Default unless a Responsible Officer of the Trustee in its Corporate Trust
Office has actual knowledge thereof or unless written notice of any event which
is in fact such a default is received by the Trustee at the Corporate Trust
Office of the Trustee from the Company or any Security holder, and such notice
references the Securities and this Indenture.
7.3 TRUSTEE NOT LIABLE FOR RECITALS IN INDENTURE OR IN SECURITIES. The
recitals contained herein and in the Securities (other than the certificate of
authentication on the Securities) shall be taken as the statements of the
Company, and the Trustee does not assume any responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities. The Trustee shall not be
accountable for the use or application by the Company of the proceeds of the
Securities of any series.
7.4 MAY HOLD SECURITIES. The Trustee or any agent of the Trustee, in its
individual or any other capacity, may become the owner or pledgee of Securities
and, subject to Section 7.8, with the same rights it would have if it were not
Trustee or such agent.
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7.5 MONEYS RECEIVED BY TRUSTEE TO BE HELD IN TRUST WITHOUT INTEREST.
Subject to the provisions of Section 12.4, all moneys received by the Trustee
shall, until used or applied as herein provided, be held in trust for the
purposes for which they were received, but need not be segregated from other
funds except to the extent required by law. The Trustee shall be under no
liability for interest on any moneys received by it hereunder.
7.6 TRUSTEE ENTITLED TO COMPENSATION, REIMBURSEMENT AND INDEMNITY. The
Company covenants and agrees to pay to the Trustee from time to time, and the
Trustee shall be entitled to, such compensation as shall be agreed to in writing
between the Company and the Trustee (which shall not be limited by any provision
of law in regard to the compensation of a trustee of any express trust), and,
the Company will pay or reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the Trustee
in connection with the acceptance or administration of its trust under this
Indenture (including the reasonable compensation and the reasonable expenses and
disbursements of its agents and counsel and of all persons not regularly in its
employ) except any such expense, disbursement or advance as may arise from its
negligence or bad faith. The Company also covenants and agrees to indemnify each
of the Trustee, any predecessor Trustee and their agents for, and to hold them
harmless against, any loss, liability or expense incurred without negligence or
bad faith on their part and arising out of or in connection with the acceptance
or administration of this trust and performance of their duties hereunder,
including the reasonable costs and expenses (including reasonable fees and
disbursements of their counsel) of defending themselves against any claim or
liability in connection with the exercise or performance of any of the powers or
duties hereunder. The obligations of the Company under this Section to
compensate the Trustee, to pay or reimburse the Trustee for expenses,
disbursements and advances and to indemnify and hold harmless the Trustee shall
constitute additional indebtedness hereunder and shall survive the satisfaction
and discharge of this Indenture and the resignation or removal of the Trustee.
Such additional indebtedness shall be secured by a lien prior to that of the
Securities upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of or interest, if any,
on particular Securities.
Without prejudice to any other rights available to the Trustee under
applicable law, when the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 6.1(d) or Section
6.1(e), the expenses (including the reasonable charges and expenses of its
counsel) and the compensation for the services are intended to constitute
expenses of administration under any applicable federal or state bankruptcy,
insolvency or other similar law.
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7.7 RIGHT OF TRUSTEE TO RELY ON OFFICERS' CERTIFICATE WHERE NO OTHER
EVIDENCE SPECIFICALLY PRESCRIBED. Except as otherwise provided in Section 7.1,
whenever in the administration of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking,
suffering or omitting to take any action hereunder, the Trustee (unless other
evidence in respect thereof be herein specifically prescribed) may, in the
absence of negligence or bad faith on its part, request and rely upon an
Officers' Certificate which, upon receipt of such request, shall be promptly
delivered by the Company.
7.8 DISQUALIFICATION; CONFLICTING INTERESTS. If the Trustee has or shall
acquire any conflicting interest, within the meaning of the Trust Indenture Act,
the Trustee shall either eliminate such interest or resign, to the extent and in
the manner provided by, and subject to the provisions of, the Trust Indenture
Act and this Indenture.
7.9 REQUIREMENTS FOR ELIGIBILITY OF TRUSTEE. There shall at all times be
a Trustee hereunder that is a corporation, organized and doing business under
the laws of the United States of America, any state thereof or the District of
Columbia, eligible under Sections 310(a)(1) and (5) of the Trust Indenture Act
to act as trustee under an indenture qualified under the Trust Indenture Act and
that has a combined capital and surplus (computed in accordance with Section
310(a)(2) of the Trust Indenture Act) of at least $50,000,000 subject to
supervision or examination by federal or state authority. If at any time the
Trustee shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
7.10 RESIGNATION AND REMOVAL OF TRUSTEE.
(a) The Trustee, or any trustee or trustees hereafter appointed, may
at any time resign with respect to one or more or all series of Securities by
giving written notice of such resignation to the Company and by giving to the
holders of Securities of the applicable series notice thereof in the manner and
to the extent provided in subsection (c) of Section 5.4 with respect to reports
pursuant to subsection (a) of Section 5.4. Upon receiving such notice of
resignation and if the Company shall deem it appropriate evidence satisfactory
to it of such mailing, the Company shall promptly appoint a successor Trustee
with respect to the applicable series (it being understood that any successor
Trustee may be appointed with respect to the Securities of one or more or all of
such series and at any time there shall be only one Trustee with respect to the
Securities of any particular series) by written instrument, in duplicate,
executed pursuant to a Resolution of the Company, one copy of which instrument
shall be delivered to the resigning Trustee and one copy to the successor
Trustee. If no successor
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Trustee shall have been so appointed with respect to any series and have
accepted appointment within 30 days after the mailing of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee, or any Securityholder
who has been a bona fide holder of a Security or Securities of the applicable
series for at least six months may, subject to the provisions of Section 6.8, on
behalf of himself and all others similarly situated, petition any such court for
the appointment of a successor Trustee. Such court may thereupon after such
notice, if any, as it may deem proper and prescribe, appoint a successor
Trustee.
(b) In case at any time any of the following shall occur:
(i) The Trustee shall fail to comply with Section 7.8 after
written request therefor by the Company or by any Securityholder who has
been a bona fide holder of a Security or Securities of the applicable
series for at least six months, or
(ii) The Trustee shall cease to be eligible in accordance with
the provisions of Section 7.9 and shall fail to resign after written
request therefor by the Company or by any such Securityholder, or
(iii) The Trustee shall become incapable of acting, or shall be
adjudged a bankrupt or insolvent, or a receiver of the Trustee or of its
property shall be appointed, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, the Company may remove the Trustee with respect to the
applicable series and appoint a successor Trustee with respect to the applicable
series by written instrument, in duplicate, executed pursuant to a Resolution of
the Company, one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor Trustee, or, subject to the provisions of
Section 6.8, any Securityholder who has been a bona fide holder of a Security or
Securities of the applicable series for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee with respect to the applicable series. Such court may thereupon, after
such notice, if any, as it may deem proper and prescribe, remove the Trustee and
appoint a successor Trustee.
(c) The holders of a majority in principal amount of the Securities of
any one series voting as a separate class or all series
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voting as one class at the time outstanding (determined as provided in Section
8.4) may at any time remove the Trustee with respect to the applicable series or
all series, as the case may be, and appoint a successor Trustee with respect to
the applicable series or all series, as the case may be, by written instrument
or instruments signed by such holders or their attorneys-in-fact duly
authorized, or by the affidavits of the permanent chairman and permanent
secretary of a meeting of the Securityholders (as elected in accordance with
Section 9.5) evidencing the vote upon a resolution or resolutions submitted
thereto with respect to such removal and appointment (as provided in Article
Nine), and by delivery thereof to the Trustee so removed, to the successor
Trustee and to the Company.
(d) Any resignation or removal of the Trustee and any appointment of a
successor Trustee pursuant to any of the provisions of this Section shall become
effective upon acceptance of appointment by the successor Trustee as provided in
Section 7.11.
7.11 ACCEPTANCE BY SUCCESSOR TRUSTEE. Any successor Trustee with respect
to all series of Securities appointed as provided in Section 7.10 shall execute,
acknowledge and deliver to the Company and to its predecessor Trustee an
instrument accepting such appointment hereunder, and thereupon the resignation
or removal of the predecessor Trustee with respect to all series shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
with respect to such series of its predecessor hereunder, with like effect as if
originally named as Trustee herein; but, on the written request of the Company
or of the successor Trustee, the Trustee ceasing to act shall, upon payment of
any amounts then due it pursuant to the provisions of Section 7.6, execute and
deliver an instrument transferring to such successor Trustee all the rights and
powers with respect to such series of the Trustee so ceasing to act. Upon the
request of any such successor Trustee, the Company shall execute any and all
instruments in writing for more fully and certainly vesting in and confirming to
such successor Trustee all such rights and powers. Any Trustee ceasing to act
shall, nevertheless, retain a lien upon all property or funds held or collected
by such Trustee or any successor Trustee to secure any amounts then due it
pursuant to the provisions of Section 7.6.
In case of the appointment hereunder of a successor Trustee with respect to
the Securities of one or more (but not all) series, the Company, the retiring
Trustee and each successor Trustee with respect to the Securities of such series
shall execute and deliver an indenture supplemental hereto wherein each
successor Trustee shall accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, each
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successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of such series to which the appointment
of such successor Trustee relates, (2) if the retiring Trustee is not retiring
with respect to all Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of such series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees
co-Trustees of the same trust and that each such Trustee shall be Trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee; and upon the execution and delivery of
such supplemental indenture the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of such series to which the appointment of such successor
Trustee relates; but, on written request of the Company or any successor
Trustee, such retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee hereunder
with respect to the Securities of such series to which the appointment of such
successor Trustee relates.
No successor Trustee shall accept appointment as provided in this Section
unless at the time of such acceptance such successor Trustee shall be qualified
under the provisions of Section 7.8 and eligible under the provisions of Section
7.9.
Upon acceptance of appointment by a successor Trustee as provided in this
Section, the successor Trustee shall at the expense of the Company transmit
notice of the succession of such Trustee hereunder to the holders of Securities
of any applicable series in the manner and to the extent provided in subsection
(c) of Section 5.4 with respect to reports pursuant to subsection (a) of said
Section 5.4.
7.12 SUCCESSOR TO TRUSTEE BY MERGER, CONSOLIDATION OR SUCCESSION TO
BUSINESS. Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be qualified under the provisions of Section 7.8
and eligible under
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the provisions of Section 7.9, without the execution or filing of any paper or
any further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Securities shall have been
authenticated but not delivered, any such successor to the Trustee may adopt the
certificate of authentication of any predecessor Trustee, and deliver such
Securities so authenticated; and in case at that time any of the Securities
shall not have been authenticated, any successor to the Trustee may authenticate
such Securities either in the name of any predecessor hereunder or in the name
of the successor Trustee; and in all such cases such certificates shall have the
full force which it is anywhere in the Securities or in this Indenture provided
that the certificate of the Trustee shall have; provided, however, that the
right to adopt the certificate of authentication of any predecessor Trustee or
to authenticate Securities in the name of any predecessor Trustee shall apply
only to its successor or successors by merger, conversion or consolidation.
7.13 LIMITATIONS ON PREFERENTIAL COLLECTION OF CLAIMS BY THE TRUSTEE.
The Trustee shall comply with Section 311(a) of the Trust Indenture Act of
1939, excluding any creditor relationship described in Section 311(b) of the
Trust Indenture Act of 1939. A Trustee who has resigned or been removed shall
be subject to Section 311(a) of the Trust Indenture Act of 1939 to the extent
included therein.
ARTICLE VII
CONCERNING THE SECURITYHOLDERS
8.1 EVIDENCE OF ACTION BY SECURITYHOLDERS. Whenever in this Indenture it
is provided that the holders of a specified percentage in principal amount of
the Securities of any or all series may take any action (including the making of
any demand or request, the giving of any notice, consent, or waiver or the
taking of any other action), the fact at the time of taking any such action the
holders of such specified percentage have joined therein may be evidenced (a) by
any instrument or any number of instruments of similar tenor executed by such
Securityholders in person or by agent or proxy appointed in writing, or (b) by
the record of such holders of Securities voting in favor thereof at any meeting
of such Securityholders duly called and held in accordance with the provisions
of Article Nine, or (c) by a combination of such instrument or instruments and
any such record of such a meeting of such Securityholders.
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If there shall be more than one Trustee acting hereunder with respect to
separate series of Securities, such Trustees shall collaborate, if necessary, in
acting under Article Nine and in determining whether the holders of a specified
percentage in principal amount of the Securities of any or all series have taken
any such action.
8.2 PROOF OF EXECUTION OF INSTRUMENTS AND OF HOLDING OF SECURITIES.
Subject to the provisions of Sections 7.1, 7.2 and 9.5, proof of the execution
of any instrument by a Securityholder or his agent or proxy and proof of the
holding by any person of any of the Securities shall be sufficient if made in
the following manner:
The fact and date of the execution by any such person of any instrument may
be proved in any reasonable manner acceptable to the Trustee.
The ownership of Securities of any series shall be proved by the Register
of such Securities of such series, or by certificates of the Security registrar
thereof.
The Trustee shall not be bound to recognize any person as a Securityholder
unless and until title to the Securities held by him is proved in the manner in
this Article Eight provided.
The record of any Securityholders' meeting shall be proved in the manner
provided in Section 9.6.
The Trustee may accept such other proof or require such additional proof of
any matter referred to in this Section as it shall deem reasonable.
8.3 WHO MAY BE DEEMED OWNERS OF SECURITIES. Prior to due presentment for
registration of transfer of any Security, the Company, the Trustee and any agent
of the Company or the Trustee may deem and treat the person in whose name such
Security shall be registered upon the Register of Securities of the series of
which such Security is a part as the absolute owner of such Security (whether or
not payments in respect of such Security shall be overdue and notwithstanding
any notation of ownership or other writing thereon) for the purpose of receiving
payment of or an account of the principal of and interest, subject to Section
2.3, on such Security and for all other purposes; and neither the Company nor
the Trustee nor any agent of the Company or the Trustee shall be affected by any
notice to the contrary. All such payments so made to any such holder for the
time being, or upon his order, shall be valid, and, to the extent of the sum or
sums so paid, effectual to satisfy and discharge the liability for moneys
payable upon any such Security.
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8.4 SECURITIES OWNED BY COMPANY OR CONTROLLED OR CONTROLLING PERSONS
DISREGARDED FOR CERTAIN PURPOSES. In determining whether the holders of the
requisite principal amount of Securities have concurred in any demand,
direction, request, notice, vote, consent, waiver or other action under this
Indenture, Securities which are owned by the Company or any other obligor on the
Securities or by any person directly or indirectly controlling or controlled by
or under direct or indirect common control with the Company or any other obligor
on the Securities shall be disregarded and deemed not to be outstanding for the
purpose of any such determination, provided that for the purposes of determining
whether the Trustee shall be protected in relying on any such demand, direction,
request, notice, vote, consent, waiver or other action, only Securities which a
Responsible Officer of the Trustee assigned to its principal office actually
knows are so owned shall be so disregarded. Securities so owned which have been
pledged in good faith may be regarded as outstanding for the purposes of this
Section, if the pledgee shall establish to the satisfaction of the Trustee the
pledgee's right to vote such Securities and that the pledgee is not a person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Company or any such other obligor. Upon request of the
Trustee, the Company shall furnish to the Trustee promptly an Officers'
Certificate listing and identifying all Securities, if any, known by the Company
to be owned or held by or for the account of the Company or any other obligor on
the Securities or by any person directly or indirectly controlling or controlled
by or under direct or indirect common control with the Company or any other
obligor on the Securities; and, subject to the provisions of Section 7.1, the
Trustee shall be entitled to accept such Officers' Certificate as conclusive
evidence of the facts therein set forth and of the fact that all Securities not
listed therein are outstanding for the purpose of any such determination.
8.5 INSTRUMENTS EXECUTED BY SECURITYHOLDERS BIND FUTURE HOLDERS. At any
time prior to (but not after) the evidencing to the Trustee, as provided in
Section 8.1, of the taking of any action by the holders of the percentage in
principal amount of the Securities specified in this Indenture in connection
with such action, any holder of a Security which is shown by the evidence to be
included in the Securities the holders of which have consented to such action
may, by filing written notice with the Trustee at its principal office and upon
proof of holding as provided in Section 8.2, revoke such action so far as
concerns such Security. Except as aforesaid any such action taken by the holder
of any Security and any direction, demand, request, notice, waiver, consent,
vote or other action of the holder of any Security which by any provisions of
this Indenture is required or permitted to be given shall be conclusive and
binding upon such holder and upon all future holders and owners of such
Security, and of any Security issued in lieu thereof or upon
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registration of transfer thereof, irrespective of whether any notation in regard
thereto is made upon such Security. Any action taken by the holders of the
percentage in principal amount of the Securities of any or all series specified
in this Indenture in connection with such action shall be conclusively binding
upon the Company, the Trustee and the holders of all of the Securities of such
series subject, however, to the provisions of Section 7.1.
ARTICLE IX
SECURITYHOLDERS' MEETINGS
9.1 PURPOSES FOR WHICH MEETINGS MAY BE CALLED. A meeting of holders of
Securities of any or all series may be called at any time and from time to time
pursuant to the provisions of this Article for any of the following purposes:
(a) To give any notice to the Company or to the Trustee, or to give
any directions to the Trustee, or to consent to the waiving of any default
hereunder and its consequences, or to take any other action authorized to be
taken by holders of Securities of any or all series, as the case may be,
pursuant to any of the provisions of Article Six;
(b) To remove the Trustee and appoint a successor Trustee pursuant to
the provisions of Article Seven;
(c) To consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 10.2; or
(d) To take any other action authorized to be taken by or on behalf of
the holders of any specified principal amount of the Securities of any or all
series, as the case may be, under any other provision of this Indenture or under
applicable law.
9.2 MANNER OF CALLING MEETINGS. The Trustee may at any time call a
meeting of Securityholders to take any action specified in Section 9.1, to be
held at such time and at such place in the Borough of Manhattan, State of New
York, as the Trustee shall determine. Notice of every meeting of
Securityholders setting forth the time and place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be mailed not less
than 15 nor more than 90 days prior to the date fixed for the meeting.
9.3 CALL OF MEETING BY COMPANY OR SECURITYHOLDERS. In case at any time
the Company, pursuant to a resolution of its Board of Directors, or the holders
of not less than 10 percent in principal amount of the Securities of any or all
series, as the case may be, then outstanding,
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shall have requested the Trustee to call a meeting of holders of Securities of
any or all series, as the case may be, to take any action authorized in Section
9.1 by written request setting forth in reasonable detail the action proposed to
be taken at the meeting, and the Trustee shall not have mailed notice of such
meeting within 20 days after receipt of such request, then the Company or such
holders of Securities in the amount above specified may determine the time and
place in the Borough of Manhattan, State of New York for such meeting and may
call such meeting to take any action authorized in Section 9.1, by mailing
notice thereof as provided in Section 9.2.
9.4 WHO MAY ATTEND AND VOTE AT MEETINGS. To be entitled to vote at any
meeting of Securityholders a person shall (a) be a holder of one or more
Securities with respect to which the meeting is being held, or (b) be a person
appointed by an instrument in writing as proxy by such holder of one or more
Securities. The only persons who shall be entitled to be present or to speak at
any meeting of Securityholders shall be the persons entitled to vote at such
meeting and their counsel and any representatives of the Trustee and its counsel
and any representatives of the Company and its counsel.
9.5 REGULATIONS MAY BE MADE BY TRUSTEE. Notwithstanding any other
provisions of this Indenture, the Trustee may make such reasonable regulations
as it may deem advisable for any meeting of Securityholders, in regard to proof
of the holding of Securities and of the appointment of proxies, and in regard to
the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall think
fit. Except as otherwise permitted or required by any such regulations, the
holding of Securities shall be proved in the manner specified in Section 8.2 and
the appointment of any proxy shall be proved in the manner specified in said
Section 8.2; provided, however, that such regulations may provide that written
instruments appointing proxies regular on their face, may be presumed valid and
genuine without the proof hereinabove or in said Section 8.2 specified.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Securityholders as provided in Section 9.3, in which case the
Company or the Securityholders calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by majority vote of the meeting.
Subject to the provisions of Section 8.4, at any meeting each
Securityholder or proxy shall be entitled to one vote for each $1,000
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principal amount of Securities held or represented by him, provided, however,
that no vote shall be cast or counted at any meeting in respect of any Security
challenged as not outstanding and ruled by the permanent chairman of the meeting
to be not outstanding; provided, further, that each holder of Original Issue
Discount Securities shall be entitled to one vote for each $1,000 amount which
would be due upon acceleration of his Original Issue Discount Security on the
date of the meeting. Neither a temporary nor a permanent chairman of the meeting
shall have a right to vote other than by virtue of Securities held by him or
instruments in writing as aforesaid duly designating him as the person to vote
on behalf of other Securityholders. Any meeting of Securityholders duly called
pursuant to the provisions of Section 9.2 or 9.3 may be adjourned from time to
time, and the meeting may be held so adjourned without further notice.
At any meeting of Securityholders, the presence of persons holding or
representing Securities in principal amount sufficient to take action on the
business for the transaction of which such meeting was called shall constitute a
quorum, but, if less than a quorum is present, the person or persons holding or
representing a majority in principal amount of the Securities represented at the
meeting may adjourn such meeting with the same effect for all intents and
purposes, as though a quorum had been present.
9.6 MANNER OF VOTING AT MEETINGS AND RECORD TO BE KEPT. The vote upon any
resolution submitted to any meeting of Securityholders shall be by written
ballots on which shall be subscribed the signatures of the holders of Securities
or of their representatives by proxy and the principal amount or principal
amounts of the Securities held or represented by them. The permanent chairman of
the meeting shall appoint two inspectors of votes who shall count all votes cast
at the meeting for or against any resolution and who shall make and file with
the permanent secretary of the meeting their verified written reports in
duplicate of all votes cast at the meeting. A record in duplicate of the
proceedings of each meeting of Securityholders shall be prepared by the
permanent secretary of the meeting and there shall be attached to said record
the original reports of the inspectors of votes on any vote by ballot taken
thereat and affidavits by one or more persons having knowledge of the facts
setting forth a copy of the notice of the meeting and showing that said notice
was mailed as provided in Section 9.2. The record shall show the principal
amount or principal amounts of the Securities voting in favor of, against, or
abstaining from voting on, any resolution. The record shall be signed and
verified by the affidavits of the permanent chairman and permanent secretary of
the meeting and one of the duplicates shall be delivered to the Company and the
other to the Trustee to be preserved by the Trustee, the latter to have attached
thereto the ballots voted at the meeting.
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Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
9.7 EXERCISE OF RIGHTS OF TRUSTEE, SECURITYHOLDERS AND HOLDERS OF
PREFERRED SECURITIES NOT TO BE HINDERED OR DELAYED. Nothing in this Article
contained shall be deemed or construed to authorize or permit, by reason of any
call of a meeting of Securityholders or any rights expressly or impliedly
conferred hereunder to make such call any hindrance or delay in the exercise of
any right or rights conferred upon or reserved to the Trustee, to the
Securityholders or the holders of Preferred Securities under any of the
provisions of this Indenture or of the Securities.
ARTICLE X
SUPPLEMENTAL INDENTURES
10.1 PURPOSES FOR WHICH SUPPLEMENTAL INDENTURES MAY BE ENTERED INTO
WITHOUT CONSENT OF SECURITYHOLDERS. Without the consent of any Securityholders
or any holders of Preferred Securities, the Company, when authorized by a
Resolution of the Company, and the Trustee may from time to time, and at any
time enter into an indenture or indentures supplemental hereto, in form
satisfactory to such Trustee (which shall comply with the provisions of the
Trust Indenture Act of 1939 as then in effect), for one or more of the following
purposes:
(a) To evidence the succession of another corporation to the Company,
or successive successions, and the assumption by the successor corporation of
the covenants, agreements and obligations of the Company pursuant to Article
Eleven hereof;
(b) To add to the covenants of the Company such further covenants,
restrictions or conditions as the Company and the Trustee shall consider to be
for the protection of the holders of all or any series of Securities (and if
such covenants, restrictions or conditions are to be for the benefit of less
than all series of Securities, stating that such covenants, restrictions or
conditions are expressly being included solely for the benefit of such series),
and to make the occurrence, or the occurrence and continuance, of a default in
any such additional covenants, restrictions or conditions a default or an Event
of Default permitting the enforcement of all or any of the several remedies
provided in this Indenture as herein set forth; provided, however, that in
respect to any such additional covenant, restriction or condition such
supplemental indenture may provide for a particular period of grace after
default (which period may be shorter or longer than that allowed in the case of
other defaults) or may provide for an immediate
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enforcement upon such default or may limit the remedies available to the Trustee
upon such default;
(c) To add or change any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the issuance of Securities
in bearer form, registrable or not registrable as to principal, and with or
without interest coupons;
(d) To change or eliminate any of the provisions of this Indenture;
provided, however, that any such change or elimination shall become effective
only when there is no Security of any series outstanding created prior to the
execution of such supplemental indenture which is entitled to the benefit of
such provision;
(e) To establish the form or terms of Securities of any series as
permitted by Section 2.1 and 2.2;
(f) To cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provisions contained herein or in any supplemental
indenture, or to make such other provision in regard to matters or questions
arising under this Indenture or any supplemental indenture; provided, however,
that such action shall not adversely affect the interest of the holders of
Securities of any series in any material respect or, in the case of the
Securities of a series issued to a DRI Trust and for so long as any of the
corresponding series of Preferred Securities issued by such DRI Trust shall
remain outstanding, the holders of such Preferred Securities;
(g) To mortgage or pledge to the Trustee as security for the
Securities any property or assets which the Company may desire to mortgage or
pledge as security for the Securities; and
(h) To qualify, or maintain the qualification of, the Indenture under
the Trust Indenture Act.
The Trustee is hereby authorized to join with the Company in the execution
of any such supplemental indenture, to make any further appropriate agreements
and stipulations which may be therein contained and to accept the conveyance,
transfer, mortgage, pledge or assignment of any property thereunder, but the
Trustee shall not be obligated to enter into any such supplemental indenture
which affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section may
be executed by the Company and the Trustee without the
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consent of the holders of any of the Securities at the time outstanding,
notwithstanding any of the provisions of Section 10.2.
10.2 MODIFICATION OF INDENTURE WITH CONSENT OF HOLDERS OF A MAJORITY IN
PRINCIPAL AMOUNT OF SECURITIES. With the consent (evidenced as provided in
Section 8.1) of the holders of not less than a majority in principal amount of
the Securities of all series at the time outstanding (determined as provided in
Section 8.4) affected by such supplemental indenture (voting as one class), the
Company, when authorized by a Resolution of the Company, and the Trustee may
from time to time and at any time enter into an indenture or indentures
supplemental hereto (which shall be in conformity with the provisions of the
Trust Indenture Act of 1939 as then in effect) for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of any supplemental indenture or of modifying in any manner
the rights of the holders of the Securities of each such series; provided,
however, that no such supplemental indenture shall (i) change the fixed Maturity
of any Securities, or reduce the rate or extend the time of payment of any
interest thereon or on any overdue principal amount or reduce the principal
amount thereof, or change the provisions pursuant to which the rate of interest
on any Security is determined if such change could reduce the rate of interest
thereon, or reduce the minimum rate of interest thereon, or reduce any amount
payable upon any redemption thereof, or adversely affect any right to convert
the Securities in accordance therewith, or reduce the amount to be paid at
Maturity or upon redemption in Capital Stock or make the principal thereof or
any interest thereon or on any overdue principal amount payable in any coin or
currency other than that provided in the Security without the consent of the
holder of each Security so affected, (ii) reduce the aforesaid percentage of
Securities, the holders of which are required to consent to any such
supplemental indenture without the consent of the holders of all Securities then
outstanding, (iii) modify any of the provisions of this Section, Section 4.7 or
Section 6.6, except to increase any such percentage or to provide that certain
other provisions of this Indenture cannot be modified or waived without the
consent of the holders of all Securities then outstanding or (iv) modify the
provisions of Article Fourteen with respect to the subordination of outstanding
Securities of any series in a manner adverse to the holders thereof without the
consent of the holder of each Security so affected; provided, however, that, in
the case of the Securities of a series issued to a DRI Trust, so long as any of
the corresponding series of Preferred Securities issued by such DRI Trust
remains outstanding, (i) no such amendment shall be made that adversely affects
the holders of such Preferred Securities in any material respect, and no
termination of this Indenture shall occur, and no waiver of any Event of Default
with respect to such series or compliance with any covenant with respect to such
series under this Indenture shall be effective, without the prior consent
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of the holders of at least a majority of the aggregate liquidation amount of
such Preferred Securities then outstanding unless and until the principal (and
premium, if any) of the Securities of such series and all accrued and unpaid
interest (including any Additional Interest) thereon have been paid in full; and
(ii) no amendment shall be made to Section 6.5 of this Indenture that would
impair the rights of the holders of such Preferred Securities provided therein
or to this Indenture that requires the consent of each holder of the Securities
of such series without the prior consent of each holder of such Preferred
Securities then outstanding unless and until the principal (and premium, if any)
of the Securities of such series and all accrued and unpaid interest (including
any Additional Interest) thereon have been paid in full.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities or Preferred Securities,
or which modifies the rights of holders of Securities or holders of Preferred
Securities of such series with respect to such covenant or other provision,
shall be deemed not to affect the rights under this Indenture of the holders of
Securities or holders of Preferred Securities of any other series.
Upon the request of the Company, accompanied by a copy of a Resolution of
the Company certified by the Corporate Secretary or an Assistant Corporate
Secretary of the Company authorizing the execution of any such supplemental
indenture, and upon the filing with the Trustee of evidence of the consent of
Securityholders as aforesaid, the Trustee shall join with the Company in the
execution of such supplemental indenture unless such supplemental indenture
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion, but shall not be
obligated to, enter into such supplemental indenture.
It shall not be necessary for the consent of the Securityholders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such consent shall approve the substance thereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Company
shall mail a notice to the holders of Securities of each series so affected,
setting forth in general terms the substance of such supplemental indenture. Any
failure of the Company to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental
indenture.
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10.3 EFFECT OF SUPPLEMENTAL INDENTURES. Upon the execution of any
supplemental indenture pursuant to the provisions of this Article, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Company and the holders
of Securities shall thereafter be determined, exercised and enforced hereunder
subject in all respects to such modifications and amendments, and all the terms
and conditions of any such supplemental indenture shall be and be deemed to be
part of the terms and conditions of this Indenture for any and all purposes.
The Trustee shall be entitled to receive, and subject to the provisions of
Section 7.1 shall be entitled to rely upon, an Opinion of Counsel as conclusive
evidence that any such supplemental indenture complies with the provisions of
this Article.
10.4 SECURITIES MAY BEAR NOTATION OF CHANGES BY SUPPLEMENTAL INDENTURES.
Securities authenticated and delivered after the execution of any supplemental
indenture pursuant to the provisions of this Article, or after any action taken
at a Securityholders' meeting pursuant to Article Nine, may bear a notation in
form approved by the Trustee as to any matter provided for in such supplemental
indenture or as to any action taken at any such meeting. If the Company or the
Trustee shall so determine, new Securities so modified as to conform, in the
opinion of the Trustee and the Board of Directors of the Company, to any
modification of this Indenture contained in any such supplemental indenture may
be prepared by the Company, authenticated by the Trustee and delivered in
exchange for the Securities then outstanding.
10.5 REVOCATION AND EFFECT OF CONSENTS. Subject to Section 8.5, until an
amendment, supplement, waiver or other action becomes effective, a consent to it
by a Securityholder of a Security is a continuing consent conclusive and binding
upon such Securityholder and every subsequent Securityholder of the same
Security or portion thereof, and of any Security issued upon the registration of
transfer thereof or in exchange therefor or in place thereof, even if notation
of the consent is not made on any such Security.
The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Securityholders entitled to consent to any amendment,
supplement or waiver. If a record date is fixed, then, notwithstanding the
preceding paragraph, those Persons who were Securityholders at such record date
(or their duly designated proxies), and only such Persons, shall be entitled to
consent or revoke such consent to such amendment, supplement or waiver, whether
or not such Persons continue to be Securityholders after such record date. No
such
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consent shall be valid or effective for more than 180 days after such
record date.
After an amendment, supplement, waiver or other action becomes effective,
it shall bind every Securityholder.
10.6 CONFORMITY WITH TRUST INDENTURE ACT. Every supplemental indenture
executed pursuant to this Article shall conform to the requirements of the Trust
Indenture Act.
ARTICLE XI
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
11.1 COMPANY MAY CONSOLIDATE, ETC., ON CERTAIN TERMS. The Company
covenants that it will not merge or consolidate with any other corporation or
sell or convey all or substantially all of its assets to any Person unless (i)
either the Company shall be the continuing corporation, or the successor
corporation (if other than the Company) shall be a corporation organized and
existing under the laws of the United States of America or a State thereof or
the District of Columbia and such corporation shall expressly assume the due and
punctual payment of the principal of and interest on all the Securities,
according to their tenor, and the due and punctual performance and observance of
all of the covenants and conditions of this Indenture to be performed by the
Company by supplemental indenture in form satisfactory to the Trustee, executed
and delivered to the Trustee by such corporation, (ii) the Company or such
successor corporation, as the case may be, shall not, immediately after such
merger or consolidation, or such sale or conveyance, be in default in the
performance of any such covenant or condition, and (iii) in the case of
Securities of a series issued to a DRI Trust, such consolidation, merger, sale
or conveyance is permitted under the relevant Trust Agreement and DRI Guarantee
and does not give rise to any breach or violation of such Trust Agreement or DRI
Guarantee.
11.2 SUCCESSOR CORPORATION SUBSTITUTED. In case of any such
consolidation, merger, sale or conveyance and upon any such assumption by the
successor corporation, such successor corporation shall succeed to and be
substituted for the Company, with the same effect as if it had been named herein
as the party of the first part. Such successor corporation thereupon may cause
to be signed, and may issue either in its own name or in the name of the
Company, any or all of the Securities issuable hereunder which theretofore shall
not have been delivered to the Trustee; and upon the order of such successor
corporation, instead of the Company, and subject to all the terms, conditions
and limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Securities which previously shall have been signed and
delivered by
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the officers of the Company to the Trustee, and any Securities which such
successor corporation thereafter shall cause to be signed and delivered to the
Trustee. All the Securities so issued shall in all respects have the same legal
rank and benefit under this Indenture as the Securities theretofore or
thereafter issued in accordance with the terms of this Indenture as though all
of such Securities had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale or conveyance such changes
in phraseology and form (but not in substance) may be made in the Securities
thereafter to be issued as may be appropriate.
11.3 OPINION OF COUNSEL TO TRUSTEE. The Trustee shall be entitled to
receive, and subject to the provisions of Section 7.1 shall be entitled to rely
upon, an Opinion of Counsel as conclusive evidence that any such consolidation,
merger, sale or conveyance and any such assumption, complies with the provisions
of this Article and that all conditions precedent herein provided for relating
to such transaction have been complied with.
ARTICLE XII
SATISFACTION AND DISCHARGE OF INDENTURE, UNCLAIMED MONEYS
12.1 SATISFACTION AND DISCHARGE OF INDENTURE. If (a) the Company shall
deliver to the Trustee for cancellation all Securities of any series theretofore
authenticated (other than any Securities of such series which shall have been
destroyed, lost or stolen and which shall have been replaced or paid as provided
in Section 2.7) and not theretofore canceled, or (b) all the Securities of such
series not theretofore canceled or delivered to the Trustee for cancellation
shall have become due and payable, or are by their terms to become due and
payable within one year or are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of redemption,
and the Company shall deposit with the Trustee as trust funds the entire amount
sufficient to pay at Maturity or upon redemption all of such Securities not
theretofore canceled or delivered to the Trustee for cancellation, including
principal and any interest due or to become due to such date of Maturity or
redemption date, as the case may be, and if in either case the Company shall
also pay or cause to be paid all other sums payable hereunder by the Company
with respect to Securities of such series, then this Indenture shall cease to be
of further effect with respect to Securities of such series, (except as to (i)
remaining rights of registration of transfer, conversion, substitution and
exchange and the Company's right of optional redemption of Securities of such
series, (ii) rights hereunder of holders to receive payments of principal of,
and any interest on, the Securities of such
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series, and other rights, duties and obligations of the holders of Securities of
such series as beneficiaries hereof with respect to the amounts, if any, so
deposited with the Trustee, and (iii) the rights, obligations and immunities of
the Trustee hereunder), and the Trustee, on demand of the Company, and at the
cost and expense of the Company, shall execute proper instruments acknowledging
satisfaction of and discharging this Indenture. The Company hereby agrees to
compensate the Trustee for any services thereafter reasonably and properly
rendered and to reimburse the Trustee for any costs or expenses theretofore and
thereafter reasonably and properly incurred by the Trustee in connection with
this Indenture or the Securities of such series.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to the Securities of any or all series, the obligations of the Company
to the Trustee under Section 7.6 shall survive.
12.2 APPLICATION BY TRUSTEE OF FUNDS DEPOSITED FOR PAYMENT OF SECURITIES.
Subject to Section 12.4, all moneys deposited with the Trustee pursuant to
Section 12.1 shall be held in trust and applied by it to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent), to the holders of the particular Securities of such series, for
the payment or redemption of which such moneys have been deposited with the
Trustee, of all sums due and to become due thereon for principal and interest.
12.3 REPAYMENT OF MONEYS HELD BY PAYING AGENT. In connection with the
satisfaction and discharge of this Indenture with respect to Securities of any
series, all moneys with respect to Securities of such series then held by any
Paying Agent under the provisions of this Indenture shall, upon demand of the
Company, be paid to the Trustee and thereupon such Paying Agent shall be
released from all further liability with respect to such moneys.
12.4 REPAYMENT OF MONEYS HELD BY TRUSTEE. Any moneys deposited with the
Trustee or any Paying Agent for the payment of the principal of or any interest
on any Securities of any series and not applied but remaining unclaimed by the
holders of Securities of such series for two years after the date upon which
such payment shall have become due and payable, shall, at the request of the
Company, be repaid to the Company by the Trustee or by such Paying Agent; and
the holder of any of the Securities of such series entitled to receive such
payment shall thereafter look only to the Company for the payment thereof;
provided, however, that the Trustee or such Paying Agent, before being required
to make any such repayment, may at the expense of the Company cause to be
published once a week for two successive weeks (in each case on any day of the
week) in an Authorized Newspaper, or mailed to the registered holders thereof, a
notice that said moneys have not been so applied and
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that after a date named therein any unclaimed balance of said money then
remaining will be returned to the Company.
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS,
DIRECTORS AND EMPLOYEES
13.1 INCORPORATORS, STOCKHOLDERS, OFFICERS, DIRECTORS AND EMPLOYEES OF
COMPANY EXEMPT FROM INDIVIDUAL LIABILITY. No recourse under or upon any
obligation, covenant or agreement of this Indenture, or of any Security, or for
any claim based thereon or otherwise in respect thereof, shall be had against
any incorporator, stockholder, officer, director or employee, as such, past,
present or future, of the Company or of any successor corporation, either
directly or through the Company, whether by virtue of any constitution, statute
or rule of law, or by the enforcement of any assessment or penalty or otherwise,
it being expressly understood that this Indenture and the obligations issued
hereunder are solely corporate obligations, and that no personal liability
whatever shall attach to, or is or shall be incurred by, the incorporators,
stockholders, officers, directors or employees, as such, of the Company or any
successor corporation, or any of them, because of the creation of the
indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in any of the Securities
or implied therefrom; and that any and all such personal liability of every name
and nature, either at common law or in equity or by constitution or statute, of,
and any and all such rights and claims against every such incorporator,
stockholder, officer, director or employee, as such, because of the creation of
the indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in any of the Securities
or implied therefrom are hereby expressly waived and released as a condition of
and as a consideration for, the execution of this Indenture and the issue of
such Securities.
ARTICLE XIV
SUBORDINATION OF SECURITIES
14.1 AGREEMENT TO SUBORDINATE. The Company, for itself, is successors and
assigns, covenants and agrees, and each holder of a Security of any series
likewise covenants and agrees by his acceptance thereof, that the obligation of
the Company to make any payment on account of the principal of and interest on
each and all of the Securities of any series shall be subordinate and junior in
right of payment to the Company's obligations to the holders of Senior
Indebtedness of the Company.
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In the case of any insolvency, receivership, conservatorship,
reorganization, readjustment of debt, marshaling of assets and liabilities or
similar proceedings or any liquidation or winding-up of or relating to the
Company as a whole, whether voluntary or involuntary, all obligations of the
Company to holders of Senior Indebtedness of the Company shall be entitled to be
paid in full before any payment shall be made on account of the principal of or
interest on any of the Securities. In the event of any such proceeding, after
payment in full of all sums owing with respect to Senior Indebtedness of the
Company, the holders of the Securities of each series, together with the holders
of any obligations of the Company ranking on a parity with the Securities, shall
be entitled to be paid from the remaining assets of the Company the amounts at
the time due and owing on account of unpaid principal of and interest on the
Securities of any series before any payment or other distribution, whether in
cash, property or otherwise, shall be made on account of any capital stock or
any obligations of the Company ranking junior to the Securities. In addition, in
the event of any such proceeding, if any payment or distribution of assets of
the Company of any kind or character whether in cash, property or securities,
including any such payment or distribution which may be payable or deliverable
by reason of the payment of any other indebtedness of the Company being
subordinated to the payment of the Securities of any series shall be received by
the Trustee or the holders of the Securities of any series before all Senior
Indebtedness of the Company is paid in full, such payment or distribution shall
be held in trust for the benefit of and shall be paid over to the holders of
such Senior Indebtedness of the Company or their representative or
representatives or to the trustee or trustees under any indenture under which
any instruments evidencing any of such Senior Indebtedness of the Company may
have been issued, ratably, for application to the payment of all Senior
Indebtedness of the Company remaining unpaid until all such Senior Indebtedness
of the Company shall have been paid in full, after giving effect to any
concurrent payment or distribution to the holders of such Senior Indebtedness of
the Company. The obligations of the Company in respect of the Securities of all
series shall rank on a parity with any obligations of the Company ranking on a
parity with the Securities. Nothing in this Article shall apply to claims of,
or payments to, the Trustee under or pursuant to Section 7.6.
The subordination provisions of the foregoing paragraph and Section 14.9
shall not be applicable to amounts at the time due and owing on the Securities
of any series on account of the unpaid principal of or interest on the
Securities of such series for the payment of which funds have been deposited in
trust with the Trustee or any Paying Agent or have been set aside by the Company
in trust in accordance with the provisions of this Indenture; nor shall such
provisions impair any rights, interests, or powers of any secured creditor of
the Company in respect
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of any security the creation of which is not prohibited by the provisions of
this Indenture.
The Company shall give written notice to the Trustee within 10 Business
Days after the occurrence of (i) any insolvency, receivership, conservatorship,
reorganization, readjustment of debt, marshaling of assets and liabilities or
similar proceedings or any liquidation or winding-up of or relating to the
Company as a whole, whether voluntary or involuntary, (ii) any Event of Default
described in 6.1(d) or 6.1(e), or (iii) any event specified in Section 14.9.
The Trustee, subject to the provisions of Section 7.1, shall be entitled to
assume that, and may act as if, no such event referred to in the preceding
sentence has occurred unless a Responsible Officer of the Trustee assigned to
the Trustee's corporate trust department has received at the principal office of
the Trustee from the Company or any one or more holders of Senior Indebtedness
of the Company or any trustee or representative therefor (who shall have been
certified or otherwise established to the satisfaction of the Trustee to be such
a holder or trustee or representative) written notice thereof. Upon any
distribution of assets of the Company referred to in this Article, the Trustee
and holders of the Securities of each series shall be entitled to rely upon any
order or decree of a court of competent jurisdiction in which proceedings
relating to any event specified in the first sentence of this paragraph are
pending for the purpose of ascertaining the persons entitled to participate in
such distribution, the holders of the Senior Indebtedness of the Company, the
amount thereof or payable thereon, the amount or amounts paid or distributed
thereon, and all other facts pertinent thereto or to this Article, and the
Trustee, subject to the provisions of Article Seven, and the holders of the
Securities of each series shall be entitled to rely upon a certificate of the
liquidating trustee or agent or other person making any distribution to the
Trustee or to the holders of the Securities of each series for the purpose of
ascertaining the persons entitled to participate in such distribution, the
holders of the Senior Indebtedness of the Company, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article. In the absence of any such liquidating
trustee, agent or other person, the Trustee shall be entitled to rely upon a
written notice by a Person representing himself to be a holder of Senior
Indebtedness of the Company (or a trustee or representative on behalf of such
holder) as evidence that such Person is a holder of such Senior Indebtedness (or
is such a trustee or representative). In the event that the Trustee determines,
in good faith, that further evidence is required with respect to the right of
any Person, as a holder of Senior Indebtedness of the Company, to participate in
any payment or distribution pursuant to this Article, the Trustee may request
such Person to furnish evidence to the reasonable satisfaction of the Trustee as
to the amount of such Senior Indebtedness held by such
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Person, as to the extent to which such Person is entitled to participation in
such payment or distribution, and as to other facts pertinent to the rights of
such Person under this Article, and if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment.
14.2 OBLIGATION OF THE COMPANY UNCONDITIONAL. Nothing contained in this
Article or elsewhere in this Indenture is intended to or shall impair, as
between the Company and the holders of the Securities of each series, the
obligation of the Company, which is absolute and unconditional, to pay to such
holders the principal of and interest on such Securities of each series when,
where and as the same shall become due and payable, all in accordance with the
terms of such Securities, or is intended to or shall affect the relative rights
of such holders and creditors of the Company other than the holders of the
Senior Indebtedness of the Company, nor shall anything herein or therein prevent
the Trustee or the holder of any Security from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture, subject to the
rights, if any, under this Article of the holders of Senior Indebtedness of the
Company in respect of cash, property, or securities of the Company received upon
the exercise of any such remedy.
14.3 LIMITATIONS ON DUTIES TO HOLDERS OF SENIOR INDEBTEDNESS OF THE
COMPANY. With respect to the holders of Senior Indebtedness of the Company, the
Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article, and no implied
covenants or obligations with respect to the holders of Senior Indebtedness of
the Company shall be read into this Indenture against the Trustee. The Trustee
shall not be deemed to owe any fiduciary duty to the holders of Senior
Indebtedness of the Company, except with respect to moneys held in trust
pursuant to the first paragraph of Section 14.1.
14.4 NOTICE TO TRUSTEE OF FACTS PROHIBITING PAYMENT. Notwithstanding any
of the provisions of this Article or any other provisions of this Indenture, the
Trustee shall not at any time be charged with knowledge of the existence of any
facts which would prohibit the making of any payment of moneys to or by the
Trustee unless and until a Responsible Officer of the Trustee assigned to its
corporate trust department shall have received at the principal office of the
Trustee written notice thereof from the Company or from one or more holders of
Senior Indebtedness of the Company or from any trustee therefor or
representative thereof who shall have been certified by the Company or otherwise
established to the reasonable satisfaction of the Trustee to be such a holder or
trustee or representative; and, prior to the receipt of any such written notice,
the Trustee, subject to the provisions of
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Section 7.1, shall be entitled in all respects to assume that no such facts
exist; provided, however, that, if prior to the fifth Business Day preceding the
date upon which by the terms hereof any such moneys may become payable for any
purpose, or in the event of the execution of an instrument pursuant to Section
12.1 acknowledging satisfaction and discharge of this Indenture, then if prior
to the second Business Day preceding the date of such execution, the Trustee
shall not have received with respect to such moneys the notice provided for in
this Section, then, anything herein contained to the contrary notwithstanding,
the Trustee shall have full power and authority to receive such moneys and/or
apply the same to the purpose for which they were received, and shall not be
affected by any notice to the contrary which may be received by it on or after
such date; provided, however, no such application shall affect the obligations
under this Article of the Persons receiving such moneys from the Trustee.
14.5 APPLICATION BY TRUSTEE OF MONEYS DEPOSITED WITH IT. Anything in this
Indenture to the contrary notwithstanding, any deposit of moneys by the Company
with the Trustee or any agent (whether or not in trust) for any payment of the
principal of or interest on any Securities shall, except as provided in Section
14.4, be subject to the provisions of Section 14.1.
14.6 SUBROGATION. Subject to the payment in full of all Senior
Indebtedness of the Company, the holders of the Securities of each series shall
be subrogated to the rights of the holders of such Senior Indebtedness to
receive payments or distributions of assets of the Company applicable to such
Senior Indebtedness until the Securities shall be paid in full, and none of the
payments or distributions to the holders of such Senior Indebtedness to which
the holders of the Securities of any series or the Trustee would be entitled
except for the provisions of this Article or of payments over pursuant to the
provisions of this Article to the holders of such Senior Indebtedness by the
holders of such Securities or the Trustee shall, as among the Company, its
creditors other than the holders of such Senior Indebtedness, and the holders of
such Securities, be deemed to be a payment by the Company to or on account of
such Senior Indebtedness; it being understood that the provisions of this
Article are and are intended solely for the purpose of defining the relative
rights of the holders of such Securities, on the one hand, and the holders of
the Senior Indebtedness of the Company, on the other hand.
14.7 SUBORDINATION RIGHTS NOT IMPAIRED BY ACTS OR OMISSIONS OF COMPANY OR
HOLDERS OF SENIOR INDEBTEDNESS OF THE COMPANY. No right of any present or
future holders of any Senior Indebtedness of the Company to enforce
subordination as herein provided shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of the
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Company or by any act or failure to act, in good faith, by any such holder, or
by any noncompliance by the Company with the terms, provisions and covenants of
this Indenture, regardless of any knowledge thereof with which any such holder
may have or be otherwise charged. The holders of Senior Indebtedness of the
Company may, at any time or from time to time and in their absolute discretion,
change the manner, place or terms of payment, change or extend the time of
payment of, or renew or alter, any such Senior Indebtedness of the Company, or
amend or supplement any instrument pursuant to which any such Senior
Indebtedness of the Company is issued or by which it may be secured, or release
any security therefor, or exercise or refrain from exercising any other of their
rights under the Senior Indebtedness of the Company including, without
limitation, the waiver of default thereunder, all without notice to or assent
from the holders of the Securities of each series or the Trustee and without
affecting the obligations of the Company, the Trustee or the holders of such
Securities under this Article.
14.8 AUTHORIZATION OF TRUSTEE TO EFFECTUATE SUBORDINATION OF SECURITIES.
Each holder of a Security of any series, by his acceptance thereof, authorizes
and expressly directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate, as between the holders of such
Securities and the holders of Senior Indebtedness of the Company, the
subordination provided in this Article. If, in the event of any proceeding or
other action relating to the Company referred to in the second paragraph of
Section 14.1, a proper claim or proof of debt in the form required in such
proceeding or action is not filed by or on behalf of the holders of the
Securities of any series prior to fifteen days before the expiration of the time
to file such claim or claims, then the holder or holders of Senior Indebtedness
of the Company shall have the right to file and are hereby authorized to file an
appropriate claim for and on behalf of the holders of such Securities.
14.9 NO PAYMENT WHEN SENIOR INDEBTEDNESS IN DEFAULT. In the event and
during the continuation of any default in the payment of principal of or
interest on any Senior Indebtedness, or in the event that any event of default
with respect to any Senior Indebtedness shall have occurred and be continuing
and shall have resulted in such Senior Indebtedness becoming or being declared
due and payable prior to the date on which it would otherwise have become due
and payable, unless and until such event of default shall have been cured,
waived or remedied or shall have ceased to exist and such acceleration shall
have been rescinded or annulled or all amounts due on such Senior Indebtedness
are paid in full in cash or other permitted consideration, or in the event any
judicial proceeding shall be pending with respect to any such default in payment
or such event or default (unless and until all amounts due on such Senior
Indebtedness are paid in full in cash or other permitted consideration),
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then no payment or distribution of any kind or character, whether in cash,
properties or securities shall be made by the Company on account of principal of
(or premium, if any) or interest (including any Additional Interest) if any, on
the Securities or on account of the purchase or other acquisition of Securities
by the Company or any Subsidiary.
In the event that, notwithstanding the foregoing, the Company shall make
any payment to the Trustee or the holder of any Security prohibited by the
foregoing provisions of this Section, and if such fact shall, at or prior to the
time of such payment, have been made known to the Trustee or, as the case may
be, such holder, then and in such event payment shall be paid over and delivered
forthwith to the Company.
14.10 RIGHT OF TRUSTEE TO HOLD SENIOR INDEBTEDNESS OF THE COMPANY. The
Trustee shall be entitled to all of the rights set forth in this Article in
respect of any Senior Indebtedness of the Company at any time held by it in its
individual capacity to the same extent as any other holder of such Senior
Indebtedness, and nothing in this Indenture shall be construed to deprive the
Trustee of any of its rights as such holder.
14.11 ARTICLE FOURTEEN NOT TO PREVENT DEFAULTS. The failure of the Company
to make a payment pursuant to the terms of Securities of any series by reason of
any provision in this Article shall not be construed as preventing the
occurrence of an Event of Default under this Indenture.
ARTICLE XV
MISCELLANEOUS PROVISIONS
15.1 SUCCESSORS AND ASSIGNS OF COMPANY BOUND BY INDENTURE. All the
covenants, stipulations, promises and agreements in this Indenture contained by
or in behalf of the Company shall bind its successors and assigns, whether so
expressed or not.
15.2 ACTS OF BOARD, COMMITTEE OR OFFICER OF SUCCESSOR CORPORATION VALID.
Any act or proceeding by any provision of this Indenture authorized or required
to be done or performed by any board, committee or officer or officers of the
Company shall and may be done and performed with like force and effect by the
like board, committee or officer or officers of any corporation that shall at
the time be the lawful sole successor of the Company.
15.3 REQUIRED NOTICES OR DEMANDS MAY BE SERVED BY MAIL. Any notice or
demand which by any provisions of this Indenture is required or permitted to be
given or served by the Trustee, by the holders of Securities or by the holders
of Preferred Securities to or on the Company
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may be given or served by registered mail postage prepaid addressed (until
another address is filed by the Company with the Trustee for such purpose), as
follows: Dominion Resources, Inc., 901 E. Byrd Street, Richmond, Virginia 23219,
Attention: Treasurer. Any notice, direction, request, demand, consent or waiver
by the Company, by any Securityholder or by any holder of a Preferred Security
to or upon the Trustee shall be deemed to have been sufficiently given, made or
filed, for all purposes, if given, made or filed in writing at the principal
corporate trust office of the Trustee, 450 West 33rd Street, New York, New York
10001 Attention: Corporate Trustee Administration Department.
15.4 OFFICERS' CERTIFICATE AND OPINION OF COUNSEL TO BE FURNISHED UPON
APPLICATIONS OR DEMANDS BY THE COMPANY. Except as otherwise expressly provided
in this Indenture, upon any application or request by the Company to the Trustee
to take any action under any provision of this Indenture, the Company shall
furnish to the Trustee an Officers' Certificate stating that all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that, in the
opinion of such counsel, all such conditions precedent, if any, have been
complied with, except that in the case of any such application or request as to
which the furnishing of such documents or any of them is specifically required
by any provision of this Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished.
15.5 PAYMENTS DUE ON SATURDAYS, SUNDAYS, AND HOLIDAYS. In any case where
the date of payment of interest on or principal of the Securities of any series
or the date fixed for any redemption of any Security of any series shall not be
a Business Day, then payment of interest or principal need not be made on such
date, but shall be made on the next succeeding Business Day with the same force
and effect as if made on the date fixed for the payment of interest on or
principal of the Security or the date fixed for any redemption of any Security
of such series, and no additional interest shall accrue for the period after
such date and before payment.
15.6 PROVISIONS REQUIRED BY TRUST INDENTURE ACT OF 1939 TO CONTROL. If
and to the extent that any provision of this Indenture limits, qualifies or
conflicts with another provision included in this Indenture which is required to
be included in this Indenture by any of Sections 310 to 317, inclusive, of the
Trust Indenture Act through operation of Section 318 thereof, such required
provision shall control.
15.7 INDENTURE AND SECURITIES TO BE CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK. This Indenture and each Security shall be governed by
the laws of the State of New York, and for all
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purposes shall be construed in accordance with the laws of said State (without
regard to conflicts of laws principles thereof).
15.8 PROVISIONS OF THE INDENTURE AND SECURITIES FOR THE SOLE BENEFIT OF
THE PARTIES AND THE SECURITYHOLDERS. Nothing in this Indenture or in the
Securities, expressed or implied, shall give or be construed to give any person,
firm or corporation, other than the parties hereto, their successors and
assigns, the holders of the Securities, and the holders of any Senior
Indebtedness of the Company, any legal or equitable right, remedy or claim under
or in respect of this Indenture, or under any covenant, condition and provision
herein contained; all its covenants, conditions and provisions being for the
sole benefit of the parties hereto and their successors and assigns and of the
holders of the Securities and, to the extent expressly provided in Sections 4.9,
6.1, 6.5, 6.6, 9.7, 10.1 and 10.2, the holders of Preferred Securities.
15.9 INDENTURE MAY BE EXECUTED IN COUNTERPARTS. This Indenture may be
executed in any number of counterparts, each of which shall be an original; but
such counterparts shall together constitute but one and the same instrument.
15.10 SECURITIES IN FOREIGN CURRENCIES. Whenever this Indenture provides
for any action by, or any distribution to, holders of Securities denominated in
United States dollars and in any other currency, in the absence of any provision
to the contrary in the form of Security of any particular series, the relative
amount in respect of any Security denominated in a currency other than United
States dollars shall be treated for any such action or distribution as that
amount of United States dollars that could be obtained for such amount on such
reasonable basis of exchange and as of such date as the Company may specify in a
written notice to the Trustee.
15.11 TABLE OF CONTENTS, HEADINGS, ETC. The Table of Contents and the
titles and headings of the articles and sections of this Indenture have been
inserted for convenience of reference only, are not to be considered a part
hereof, and shall in no way modify or restrict any of the terms or provisions
hereof.
The Chase Manhattan Bank, the party of the second part, hereby accepts the
trusts in this Indenture declared and provided, upon the terms and conditions,
hereinabove set forth.
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IN WITNESS WHEREOF, DOMINION RESOURCES, INC., the party of the first part,
has caused this Indenture to be signed and acknowledged by its Executive Vice
President, and THE CHASE MANHATTAN BANK, the party of the second part, has
caused this Indenture to be signed and acknowledged by its Vice President, all
as of the day and year first written above.
DOMINION RESOURCES, INC.
By: /s/ Edgar M. Roach, Jr.
------------------------------
Name: Edgar M. Roach, Jr.
Title: Executive Vice President
THE CHASE MANHATTAN BANK, as
trustee
By: /s/ G. McFarlane
------------------------------
Name: G. McFarlane
Title: Vice President
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EXHIBIT 4.2
FIRST SUPPLEMENTAL INDENTURE
BETWEEN
DOMINION RESOURCES, INC.
AND
THE CHASE MANHATTAN BANK
DATED AS OF DECEMBER 1, 1997
7.83% JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURES,
DUE DECEMBER 1, 2027
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
ARTICLE I
DEFINITIONS
<S> <C> <C>
1.1 Definition of Terms................................................. 2
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE JUNIOR SUBORDINATED DEBENTURES
2.1 Designation and Principal Amount.................................... 6
2.2 Stated Maturity..................................................... 6
2.3 Form and Payment; Minimum Transfer Restriction...................... 6
2.4 Exchange and Registration of Transfer of Junior
Subordinated Debentures; Restrictions on Transfers; Depositary...... 7
2.5 Interest............................................................12
ARTICLE III
PREPAYMENT OF THE JUNIOR SUBORDINATED DEBENTURES
3.1 Tax Event or Investment Company Event Prepayment....................13
3.2 Optional Prepayment by Company......................................13
3.3 Notice of Prepayment................................................14
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
4.1 Extension of Interest Payment Period................................14
4.2 Notice of Extension.................................................16
ARTICLE V
EXPENSES
5.1 Payment of Expenses.................................................16
5.2 Payment Upon Resignation or Removal.................................17
ARTICLE VI
FORM OF JUNIOR SUBORDINATED DEBENTURE
6.1 Form of Junior Subordinated Debenture...............................18
ARTICLE VII
ORIGINAL ISSUE OF JUNIOR SUBORDINATED DEBENTURES
7.1 Original issue of Junior Subordinated Debentures....................18
</TABLE>
i
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<TABLE>
<CAPTION>
ARTICLE VIII
EXCHANGE OF SECURITIES
<S> <C> <C>
8.1 Mandatory Tender in Exchange Offer................................. 18
ARTICLE IX
MISCELLANEOUS
9.1 Ratification of Indenture; First Supplemental Indenture Controls... 19
9.2 Trustee Not Responsible for Recitals............................... 19
9.3 Governing Law...................................................... 19
9.4 Separability....................................................... 19
9.5 Counterparts....................................................... 19
</TABLE>
Exhibit A - Form of Junior Subordinated Debenture
Exhibit A-1 - Form of Certificate of Transfer
Exhibit A-2 - Form of Assignment
Exhibit A-3 - Form of Schedule for Endorsements on Global Debenture to Reflect
Changes in Principal Amount
Exhibit B - Form of IAI Letter
Exhibit C - Form of Transfer Certificate: To Regulation S Global
Debenture
Exhibit D - Form of Transfer Certificate: To Rule 144A Global
Debenture
ii
<PAGE>
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE, dated as of December 1, 1997 (the "First
Supplemental Indenture"), between DOMINION RESOURCES, INC., a Virginia
corporation (the "Company"), and THE CHASE MANHATTAN BANK, as trustee (the
"Trustee") under the Indenture dated as of December 1, 1997 between the Company
and the Trustee (the "Base Indenture" and, together with this First Supplemental
Indenture, the "Indenture").
WHEREAS, the Company executed and delivered the Base Indenture to the
Trustee to provide for the future issuance of the Company's unsecured junior
subordinated debentures (the "Debentures") to be issued from time to time in one
or more series as might be determined by the Company under the Indenture, in an
unlimited aggregate principal amount which may be authenticated and delivered as
provided in the Base Indenture;
WHEREAS, pursuant to the terms of the Base Indenture, the Company desires
to provide for the establishment of two separate series of its Debentures, both
to be known as its 7.83% Junior Subordinated Deferrable Interest Debentures due
December 1, 2027 (collectively, the "Junior Subordinated Debentures"), the form
and substance of such Junior Subordinated Debentures and the terms, provisions
and conditions thereof to be set forth as provided in the Base Indenture and
this First Supplemental Indenture;
WHEREAS, the Company desires that (x) the first series of Junior
Subordinated Debentures (the "Private Debentures") be originally issued on
December 8, 1997 pursuant to the Indenture, the Purchase Agreement (as defined
below) and the Trust Agreement (as defined in Section 1.1), and (y) the second
series of Junior Subordinated Debentures (the "Exchange Debentures") be issuable
upon surrender of and in exchange for the Private Debentures pursuant to Section
8.1;
WHEREAS, Dominion Resources Capital Trust I, a Delaware statutory business
trust (the "Trust"), has offered to the purchasers (the "Initial Purchasers")
named in Schedule I to the Purchase Agreement (the "Purchase Agreement") dated
December 3, 1997 among the Initial Purchasers, the Trust and the Company in a
private placement $250,000,000 aggregate liquidation amount of its 7.83% Capital
Securities (the "Capital Securities"), representing undivided beneficial
interests in the assets of the Trust and proposes to invest the proceeds from
the sale of the Capital Securities, together with the proceeds of the sale by
the Trust to the Company of $7,732,000 aggregate liquidation amount of its
Common Securities, in $257,732,000 aggregate principal amount of the Junior
Subordinated Debentures; and
WHEREAS, the Company has requested that the Trustee execute and deliver
this First Supplemental Indenture and all requirements necessary
<PAGE>
to make this First Supplemental Indenture a valid instrument in accordance with
its terms, and to make the Junior Subordinated Debentures, when executed by the
Company and authenticated and delivered by the Trustee, the valid obligations of
the Company, have been performed, and the execution and delivery of this First
Supplemental Indenture has been duly authorized in all respects;
NOW, THEREFORE, in consideration of the purchase and acceptance of the
Junior Subordinated Debentures by the Initial Purchasers, and for the purpose of
setting forth, as provided in the Base Indenture, the form and substance of the
Junior Subordinated Debentures and the terms, provisions and conditions thereof,
the Company covenants and agrees with the Trustee as follows:
ARTICLE I
DEFINITIONS
1.1 DEFINITION OF TERMS. For all purposes of this First Supplemental
Indenture, except as otherwise expressly provided or unless the context
otherwise requires:
(a) the terms which are defined in the Base Indenture have the same
meanings when used in this First Supplemental Indenture;
(b) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(c) all other terms used herein which are defined in the Trust
Indenture Act of 1939, whether directly or by reference therein, have the
meanings assigned to them therein;
(d) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles in the United States of America, and, except as otherwise herein
expressly provided, the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall mean such
accounting principles as are generally accepted in the United States of America
at the date of such computation; provided, that when two or more principles are
so generally accepted, it shall mean that set of principles consistent with
those in use by the Company;
(e) a reference to a Section or Article is to a Section or Article of
this First Supplemental Indenture unless otherwise stated;
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(f) 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;
(g) headings are for convenience of reference only and do not affect
interpretation;
(h) the term "prepayment" as used herein means "redemption" as such
term is used in the Base Indenture; and
(i) the following terms have the meanings given to them in the Trust
Agreement: (i) Additional Distributions, (ii) Administrative Trustee, (iii)
Affiliate, (iv) Capital Securities Certificate, (v) Capital Securities Exchange
and Registration Rights Agreement, (vi) CEDEL, (vii) Debenture Exchange and
Registration Rights Agreement, (viii) Delaware Trustee, (ix) Distributions, (x)
Euroclear, (xi) Exchange Act, (xii) Institutional Accredited Investor, (xiii)
Minimum Transfer Legend, (xiv) 144A Global Security, (xv) PORTAL Market, (xvi)
Private Placement Legend, (xvii) Property Trustee, (xviii) QIB, (xix)
Registration Rights Agreements, (xx) Regulation S, (xxi) Regulation S Global
Security, (xxii) Restricted Period, (xxiii) Rule 144, (xxiv) Rule 144A, (xxv)
Rule 144(k), (xxvi) Securities Act, (xxvii) Transfer Restriction Termination
Date, and (xxviii) Trust Security.
"Additional Interest" has the meaning specified in Section 2.5.
"Adjusted Treasury Rate" means, with respect to any prepayment date,
the Treasury Rate plus (i) 1.00% if such prepayment date occurs on or before
December 1, 1998 or (ii) 0.50% if such prepayment date occurs after December 1,
1998.
"Capital Securities" has the meaning specified in the fourth recital
to this First Supplemental Indenture.
"Comparable Treasury Issue" means with respect to any prepayment date
the United States Treasury security selected by the Quotation Agent as having a
maturity comparable to the Term To Initial Optional Prepayment Date that would
be utilized, 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 Term To Initial Optional Prepayment Date. If no United States
Treasury security has a maturity which is within a period from three months
before to three months after December 1, 2007, the two most closely
corresponding United States Treasury securities shall be used as the Comparable
Treasury Issue, and the Treasury Rate shall be interpolated
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<PAGE>
or extrapolated on a straight-line basis, rounding to the nearest month using
such securities.
"Comparable Treasury Price" means, with respect to any prepayment
date, (A) the average of five Reference Treasury Dealer Quotations for such
prepayment date, after excluding the highest and lowest such Reference Treasury
Dealer Quotations, or (B) if the Trustee obtains fewer than three such Reference
Treasury Dealer Quotations, the average of all such Quotations.
"Coupon Rate" has the meaning specified in Section 2.5(a).
"Debentures" has the meaning specified in the first recital to this
First Supplemental Indenture.
"Definitive Debenture Certificates" means Debentures issued in
definitive, fully registered form.
"Event Prepayment Price" has the meaning specified in Section 3.1.
"Exchange Debentures" has the meaning specified in the third recital
to this First Supplemental Indenture.
"Extension Period" has the meaning specified in Section 4.1.
"Global Debenture" has the meaning specified in Section 2.4(a).
"Global Private Debenture" has the meaning specified in Section
2.4(d).
"Initial Optional Prepayment Date" has the meaning specified in
Section 3.2(a).
"Initial Purchasers" has the meaning specified in the fourth recital
to this First Supplemental Indenture.
"Interest Payment Date" has the meaning specified in Section 2.5.
"Junior Subordinated Debentures" has the meaning specified in the
second recital to this First Supplemental Indenture and, unless the context
otherwise requires, shall include any Exchange Debentures to be issued and
exchanged for any Private Debentures.
4
<PAGE>
"Liquidation Amount" means the stated amount of $1,000 per Capital
Security.
"144A Global Debenture" has the meaning specified in Section 2.4(c).
"Optional Prepayment Price" has the meaning specified in Section 3.2.
"Private Debentures" has the meaning specified in the third recital to
this First Supplemental Indenture.
"Purchase Agreement" has the meaning specified in the fourth recital
to this First Supplemental Indenture.
"Quotation Agent" means Morgan Stanley & Co. Incorporated and its
successors.
"Record Date" has the meaning specified in Section 2.5(a).
"Reference Treasury Dealer" means (i) Morgan Stanley & Co.
Incorporated, Lehman Brothers Inc., Merrill Lynch, Pierce, Fenner & Smith
Incorporated and J.P. Morgan Securities Inc., and their respective successors;
provided, however, that if any of the foregoing shall cease to be a primary U.S.
Government securities dealer in New York City (a "Primary Treasury Dealer"), the
Company shall substitute therefor another Primary Treasury Dealer; and (ii) any
other Primary Treasury Dealer selected by the Trustee after consultation with
the Company.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any prepayment date, the average, as determined by
the Trustee, 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 Trustee by such Reference Treasury Dealer at 5:00 p.m. on the
third Business Day preceding such prepayment date.
"Regulation S Global Debenture" has the meaning specified in Section
2.4(d).
"Restricted Period" means the period of 40 consecutive days beginning
on and including the later of (x) the day on which the offering of the Capital
Securities commences or (y) the Closing Date.
"Special Interest" has the meaning specified in Section 2.5(c).
5
<PAGE>
"Term To Initial Optional Prepayment Date" has the meaning specified
in Section 3.1.
"Treasury Rate" means (i) the yield, under the heading which
represents the average for the immediately preceding week, appearing in the most
recently published statistical release designated "H.15 (519)" or any successor
publication which is published weekly by the Federal Reserve and which
establishes yields on actively traded United States Treasury securities adjusted
to constant maturity under the caption "Treasury Constant Maturities," for the
maturity corresponding to the Term To Initial Optional Prepayment Date (if no
maturity is within three months before or after the Term To Initial Optional
Prepayment Date, yields for the two published maturities most closely
corresponding to the Term To Initial Optional Prepayment Date shall be
determined and the Treasury Rate shall be interpolated or extrapolated from such
yields on a straight-line basis, rounding to the nearest month) or (ii) if such
release (or any successor release) is not published during the week preceding
the calculation date or does not contain such yields, the rate per annum equal
to the semi-annual equivalent yield to maturity of the Comparable Treasury
Issue, calculated using a price for the Comparable Treasury Issue (expressed as
a percentage of its principal amount) equal to the Comparable Treasury Price for
such prepayment date. The Treasury Rate shall be calculated on the third
Business Day preceding the prepayment date.
"Trust" has the meaning specified in the fourth recital to this First
Supplemental Indenture.
"Trust Agreement" means the Amended and Restated Trust Agreement dated
as of December 8, 1997 among the Company, as Depositor, The Chase Manhattan
Bank, as Property Trustee, Chase Manhattan Bank Delaware, as Delaware Trustee,
the Administrative Trustees named therein and the holders, from time to time, of
undivided beneficial interests in the assets of the Trust.
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE JUNIOR SUBORDINATED DEBENTURES
2.1 DESIGNATION AND PRINCIPAL AMOUNT. There is hereby authorized two
series of Debentures, both to be designated the "7.83% Junior Subordinated
Deferrable Interest Debentures due December 1, 2027," and each limited in
aggregate principal amount to $257,732,000, which amount shall be as set forth
in any written orders of the Company for the authentication and delivery of
Junior Subordinated Debentures pursuant to Section 2.1 of the Base Indenture and
Section 7.1(a) hereof.
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2.2 STATED MATURITY. The Stated Maturity of the Junior Subordinated
Debentures is December 1, 2027, which may not be shortened or extended.
2.3 FORM AND PAYMENT; MINIMUM TRANSFER RESTRICTION.
(a) The Debentures shall be issued to the Property Trustee in fully
registered definitive form without coupons in minimum denominations of $1,000
and integral multiples of $1,000 in excess thereof. Principal and interest on
the Junior Subordinated Debentures issued in definitive form will be payable,
the transfer of such Junior Subordinated Debentures will be registrable and such
Junior Subordinated Debentures will be exchangeable for Junior Subordinated
Debentures bearing identical terms and provisions at the principal office of the
Trustee; provided, however, that payment of interest may be made at the option
of the Company by check mailed to the registered holder at such address as shall
appear in the Register. Notwithstanding the foregoing, so long as the registered
holder of any Junior Subordinated Debentures is the Property Trustee, the
payment of the principal of and interest (including Additional interest, Special
Interest and Additional Tax Sums, if any) on such Junior Subordinated Debentures
held by the Property Trustee will be made at such place, or by wire transfer of
immediately available funds to such account, as may be designated by the
Property Trustee. The Register for the Junior Subordinated Debentures shall be
kept at the principal office of the Trustee and the Trustee is hereby appointed
registrar for the Junior Subordinated Debentures.
(b) The Junior Subordinated Debentures may be transferred or exchanged
only in minimum denominations of $100,000 and integral multiples of $1,000 in
excess thereof, and any attempted transfer, sale or other disposition of Junior
Subordinated Debentures in a denomination of less than $100,000 shall be deemed
to be void and of no legal effect whatsoever. Any such transferee shall be
deemed not to be the holder of such Junior Subordinated Debentures for any
purpose, including but not limited to the receipt of payments in respect of such
Junior Subordinated Debentures and such transferee shall be deemed to have no
interest whatsoever in such Junior Subordinated Debentures.
2.4 EXCHANGE AND REGISTRATION OF TRANSFER OF JUNIOR SUBORDINATED
DEBENTURES; RESTRICTIONS ON TRANSFERS; DEPOSITARY. If distributed to holders of
Capital Securities pursuant to Section 9.4 of the Trust Agreement, the Junior
Subordinated Debentures will be issued to such holders in the same form as the
Capital Securities that such Junior Subordinated Debentures replace in
accordance with the following procedures:
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(a) So long as Junior Subordinated Debentures are eligible for book-
entry settlement with the Depositary, or unless required by law, all Junior
Subordinated Debentures that are so eligible will be represented by one or more
Junior Subordinated Debentures in global form (a "Global Debenture") registered
in the name of the Depositary or the nominee of the Depositary. Except as
provided in Section 2.4(i) below, beneficial owners of a Global Debenture shall
not be entitled to have Definitive Debenture Certificates registered in their
names, will not receive or be entitled to receive physical delivery of
Definitive Debenture Certificates and will not be registered holders of such
Global Debentures; provided, however, that a Definitive Debenture Certificate
shall be issued upon any transfer of a beneficial interest in a Global Private
Debenture to the Company or an Affiliate of the Company and no Definitive
Debenture Certificate, or portion thereof, in respect of which the Company or an
Affiliate of the Company held any beneficial interest shall be resold,
retransferred or included in any Private Global Security until such Private
Debenture is freely tradeable in accordance with Rule 144(k) or exchanged for an
Exchange Debenture.
(b) The transfer and exchange of beneficial interests in Global
Debentures shall be effected through the Depositary in accordance with the
Indenture and the procedures and standing instructions of the Depositary and the
Trustee shall make appropriate endorsements to reflect increases or decreases in
principal amounts of such Global Debentures.
(c) Private Debentures that are distributed in replacement of Private
Capital Securities represented by a 144A Global Security will be represented by
a global Private Debenture (a "144A Global Debenture"). Transfers of beneficial
interests in a 144A Global Debenture will be subject to comparable restrictions
on transfer as those contained in the Private Placement Legend and the Minimum
Transfer Legend.
(d) Private Debentures that are distributed in replacement of Private
Capital Securities represented by a Regulation S Global Security will be
represented by a global Private Debenture (a "Regulation S Global Debenture",
and together with the 144A Global Debenture, the "Global Private Debenture").
Prior to the expiration of the Restricted Period, interests in a Regulation S
Global Debenture may only be held by the Depositary's participants in the name
of a nominee of Euroclear and CEDEL. After the expiration of the Restricted
Period, transfers of beneficial interests in a Regulation S Global Debenture
will not be subject to any restrictions other than the restrictions contained in
the Minimum Transfer Legend. After the expiration of the Restricted Period,
beneficial interests in the Regulation S Global Debenture may be held by the
Depositary's participants other than in the name of a nominee of Euroclear and
CEDEL.
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(e) Private Debentures that are distributed in replacement of
Definitive Capital Securities Certificates will be represented by Definitive
Debenture Certificates and transfers will be subject to the Private Placement
Legend, the Minimum Transfer Legend and the requirements of Sections 2.4(g)(i)
or (g)(ii). The Private Placement legend shall be removed after the expiration
of (i) with respect to the Debentures initially resold in reliance on Regulation
S, the Restricted Period or (ii) with respect to the Debentures initially resold
to Institutional Accredited Investors or Qualified Institutional Buyers, the
holding period applicable to sales of the Debentures under Rule 144(k) under the
Securities Act or, in any case, such earlier time as a transfer of such
Debentures is made pursuant to an effective registration statement under the
Securities Act.
(f) Exchange Debentures that are distributed in replacement of
Exchange Capital Securities will be represented by a Global Debenture or in such
other form as the Trustee may direct and will bear the Minimum Transfer Legend.
(g) Unless and until the earlier of (i) the date upon which Private
Debentures are exchanged for Exchange Debentures or (ii) the Transfer
Restriction Termination Date:
(i) Definitive to Definitive Transfers. Any transfer
of a Definitive Debenture Certificate shall be registered upon
the Register only upon receipt by the Trustee of such Definitive
Debenture Certificate accompanied by a duly completed and
executed assignment in the form of Exhibit A-1 and, in the case
of a transfer to an Institutional Accredited Investor, upon the
receipt by the Trustee of a written certificate in the form of
Exhibit B (or other certificates, legal opinions or other
information as the Company may reasonably request to confirm that
such transfer is exempt from the registration requirements of the
Securities Act);
(ii) Definitive into a 144A Global Debenture or a
Regulation S Global Debenture. So long as Private Debentures are
eligible for book-entry settlement with the Depositary or unless
otherwise required by law, upon any transfer of a Definitive
Debenture Certificate to a QIB in accordance with Rule 144A or to
a non-U.S. Person in accordance with Regulation S, and upon
receipt of the Definitive Debenture Certificate being so
transferred, accompanied by (i) a duly completed and executed
assignment in the form attached hereto as Exhibit A-1 and (ii)(x)
in the case of a transferee taking delivery in the form of a
beneficial interest in a 144A Global Debenture, a written
certificate in the form of Exhibit D or
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(y) in the case of a transferee taking delivery in the form of a
beneficial interest in a Regulation S Global Debenture, a written
certificate in the form of Exhibit C, the Trustee, on behalf of
the Trust, shall make an endorsement on any 144A Global Debenture
or any Regulation S Global Debenture, as the case may be, to
reflect an increase in such Global Debenture and the Trustee, on
behalf of the Trust, shall cancel such Definitive Debenture
Certificate;
(iii) 144A Global Debenture into Regulation S Global
Debenture. Any transfer in accordance with Rule 904 of Regulation
S of a beneficial interest in a 144A Global Debenture to a
transferee that takes delivery in the form of a beneficial
interest in a Regulation S Global Debenture shall be reflected by
an increase in a Regulation S Global Debenture and a
corresponding decrease in the 144A Global Debenture only upon
receipt by the Trustee of a written certificate in the form of
Exhibit C (or such other certifications, legal opinions or other
information as the Company may reasonably request to confirm that
such transfer is being made pursuant to Rule 904); and
(iv) Regulation S Global Debenture into 144A Global
Debenture. Any transfer of a beneficial interest in a Regulation
S Global Debenture to a transferee that takes delivery in the
form of a beneficial interest in a 144A Global Debenture shall be
reflected by an increase in the 144A Global Debenture and a
corresponding decrease in the Regulation S Global Debenture and,
prior to the expiration of the Restricted Period, only upon
receipt by the Trustee of a written certificate in the form of
Exhibit D (or such other certifications, legal opinions or other
information as the Company may reasonably require).
(h) Any Global Debenture may be endorsed with or have incorporated in
the text thereof such legends or recitals or changes not inconsistent with the
provisions of the Indenture as may be required by the Depositary, by any
national securities exchange or by the National Association of Securities
Dealers, Inc. in order for the Private Debentures to be tradeable (subject to
applicable principles of federal securities law) on the PORTAL Market or as may
be required for the Private Debentures to be tradeable on any other market
developed for trading of securities pursuant to Rule 144A or required to comply
with any applicable law or any regulation thereunder or with the rules and
regulations of any securities exchange upon which the Junior Subordinated
Debentures may be listed or traded (subject to applicable principles of federal
securities law), or to conform with any usage with respect
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thereto, or to indicate any special limitations or restrictions to which any
particular Junior Subordinated Debentures are subject.
(i) Notwithstanding any other provisions of the Indenture (other than
the provisions set forth in this Section 2.4(i)), a Global Debenture may not be
exchanged in whole or in part for Junior Subordinated Debentures registered, and
no transfer of a Global Debenture may be registered, in the name of any person
other than the Depositary or a nominee thereof unless (i) such Depositary (A)
has notified the Company that it is unwilling or unable to continue as
Depositary for such Global Debenture or (B) has ceased to be a clearing agency
registered as such under the Exchange Act and no successor Depositary has been
appointed by the Company within 90 days after its receipt of such notice or its
becoming aware of such ineligibility, (ii) there shall have occurred and be
continuing an Event of Default, or any event which after notice or lapse of time
or both would be an Event of Default under the Indenture, with respect to such
Debenture, or (iii) the Company, in its sole discretion, instructs the Trustee
to exchange such Global Debenture for a Junior Subordinated Debenture that is
not a Global Debenture (in which case such exchange shall be effected by the
Trustee).
The Depositary shall be a clearing agency registered under the Exchange
Act. The Company initially appoints The Depository Trust Company to act as
Depositary with respect to the Global Debentures. Initially, any Global
Debentures shall be registered in the name of Cede & Co., as the nominee of the
Depositary, and deposited with the Trustee as custodian for Cede & Co.
Definitive Junior Subordinated Debentures issued in exchange for all or a
part of a Global Debenture pursuant to this Section 2.4(i) shall be registered
in such names and in such authorized denominations as the Depositary, pursuant
to instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. Upon execution and authentication, the Trustee shall
deliver such definitive Junior Subordinated Debentures to the person in whose
names such definitive Junior Subordinated Debentures are so registered.
So long as Junior Subordinated Debentures are represented by one or more
Global Debentures, (i) the registrar for the Junior Subordinated Debentures and
the Trustee shall be entitled to deal with the clearing agency for all purposes
of the Indenture relating to such Global Debentures as the sole holder of the
Junior Subordinated Debentures evidenced by such Global Debentures and shall
have no obligations to the holders of beneficial interests in such Global
Debentures; and (ii) the rights of the holders of beneficial interests in such
Global Debentures shall be exercised only through the clearing agency and shall
be limited
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to those established by law and agreements between such holders and the clearing
agency and/or the participants in the clearing agency.
At such time as all interests in a Global Debenture have been redeemed,
exchanged, repurchased or canceled, such Global Debenture shall be, upon receipt
thereof, canceled by the Trustee in accordance with standing procedures and
instructions of the Depositary. At any time prior to such cancellation, if any
interest in a Global Debenture is exchanged for definitive Junior Subordinated
Debentures, prepaid by the Company pursuant to Article 3 or canceled, or
transferred for part of a Global Debenture, the principal amount of such Global
Debenture shall, in accordance with the standing procedures and instructions of
the Depositary be reduced or increased, as the case may be, and an endorsement
shall be made on such Global Debenture by, or at the direction of, the Trustee
to reflect such reduction or increase.
2.5 INTEREST.
(a) Each Junior Subordinated Debenture will bear interest at the rate
of 7.83% per annum (the "Coupon Rate") from December 8, 1997 until the principal
thereof becomes due and payable, and will bear interest on any overdue principal
at the Coupon Rate and (to the extent that payment of such interest is
enforceable under applicable law) on any overdue installment of interest at the
Coupon Rate ("Additional Interest"), compounded semiannually, payable (subject
to the provisions of Article 4) semiannually in arrears on the 1st day of
December and June of each year (each, an "Interest Payment Date"), commencing on
June 1, 1998, to the Person in whose name such Junior Subordinated Debenture is
registered, subject to certain exceptions, at the close of business on the
Record Date next preceding such Interest Payment Date. The "Record Date" for
payment of interest will be the Business Day next preceding the Interest Payment
Date, unless such Junior Subordinated Debenture is registered to a holder other
than the Property Trustee or a nominee of the Depositary, in which case the
Record Date for payment of interest will be the fifteenth day of the calendar
month next preceding the applicable Interest Payment Date or, if such fifteenth
day of the month is not a Business Day, then the Business Day next preceding
such day. Until liquidation, if any, of the Trust, each Junior Subordinated
Debenture will be held in the name of the Property Trustee in trust for the
benefit of the holders of the Trust Securities.
(b) The amount of interest payable for any period will be computed on
the basis of a 360-day year of twelve 30-day months. In the event that any date
on which interest is payable on the Junior Subordinated Debentures is not a
Business Day, then payment of interest payable on such date will be made on the
next succeeding day which is a Business Day (and without any interest or other
payment in respect of any
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such delay), in each case with the same force and effect as if made on the date
such payment was originally payable.
(c) If the Company does not comply with certain of its obligations
under the Registration Rights Agreements, the Private Debentures shall, in
accordance with Section 2(c) of the Capital Securities Exchange and Registration
Rights Agreement and Section 2(c) of the Debenture Exchange and Registration
Rights Agreement, bear additional interest ("Special Interest") in addition to
the interest provided for in Section 2.5(a) at a rate per annum specified in
such agreements.
(d) The Company will also pay any Additional Tax Sums as additional
distributions on the Junior Subordinated Debentures if the Trust is required to
pay any additional taxes, duties or other governmental charges as a result of a
Tax Event.
ARTICLE III
PREPAYMENT OF THE JUNIOR SUBORDINATED DEBENTURES
3.1 TAX EVENT OR INVESTMENT COMPANY EVENT PREPAYMENT. If a Tax Event or
Investment Company Event shall occur and be continuing, the Company may, at its
option, prior to the Initial Optional Prepayment Date (as defined herein)
notwithstanding Section 3.2(a) but subject to Section 3.2(b), prepay the Junior
Subordinated Debentures in whole (but not in part) within 90 days of the
occurrence of such Tax Event or Investment Company Event at a prepayment price
(the "Event Prepayment Price") equal to the greater of (i) 100% of the principal
amount of such Junior Subordinated Debentures or (ii) as determined by the
Quotation Agent, an amount equal to the sum of the present values of the
Optional Prepayment Price (as defined below) that would be payable on the
Initial Optional Prepayment Date together with the present values of scheduled
payments of interest from the prepayment date to the Initial Optional Prepayment
Date (such period, the "Term To Initial Optional Prepayment Date"), in each
case, discounted to the prepayment date on a semi-annual basis (consisting of a
360-day year of twelve 30-day months) at the Adjusted Treasury Rate, plus, in
each case, accrued interest thereon to but excluding the prepayment date. The
Company shall give the Trustee notice of the amount of the Event Prepayment
Price promptly after the calculation thereof.
3.2 OPTIONAL PREPAYMENT BY COMPANY.
(a) Subject to the provisions of this Article Three, the Company shall
have the right to prepay the Junior Subordinated
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Debentures, in whole or in part, at any time on or after December 1, 2007 (the
"Initial Optional Prepayment Date"), at the optional prepayment prices set forth
below (expressed as percentages of outstanding principal amount of the Junior
Subordinated Debentures to be prepaid), plus, in each case, accrued and unpaid
interest thereon to the applicable date of prepayment (the "Optional Prepayment
Price") if prepaid during the 12-month period beginning on December 1 of the
years indicated below.
Year Percentage
---- ----------
2007........................... 103.915%
2008........................... 103.524%
2009........................... 103.132%
2010........................... 102.741%
2011........................... 102.349%
2012........................... 101.958%
2013........................... 101.566%
2014........................... 101.174%
2015........................... 100.783%
2016........................... 100.391%
2017 and thereafter............ 100.000%
If the Junior Subordinated Debentures are only partially prepaid pursuant
to this Section 3.2, the Junior Subordinated Debentures will be prepaid pro rata
--- ----
or by lot or by any other method utilized by the Trustee. The Optional
Prepayment Price shall be paid prior to 2:00 p.m., New York City time, on the
date of such prepayment, provided that the Company shall deposit with the
Trustee an amount sufficient to pay the Optional Prepayment Price by 11:00 a.m.,
New York City time, on the date such Optional Prepayment Price is to be paid.
(b) Notwithstanding the first sentence of Section 3.2, in the event
that a Tax Event or an Investment Company Event shall have occurred and be
continuing, the Junior Subordinated Debentures thereafter will be subject to
optional prepayment, in whole only, but not in part, on or after the Initial
Optional Prepayment Date, at the optional prepayment prices set forth in this
Section 3.2 and otherwise in accordance with this Article III.
3.3 NOTICE OF PREPAYMENT. Subject to Article Three of the Base Indenture,
notice of any prepayment pursuant to this Article Three will be mailed at least
20 days but not more than 60 days before the prepayment date to each holder of
Junior Subordinated Debentures to be prepaid at such holder's registered
address. Unless the Company defaults in payment of the Event Prepayment Price,
on and after the prepayment date interest shall cease to accrue on such Junior
Subordinated Debentures called for prepayment.
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ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
4.1 EXTENSION OF INTEREST PAYMENT PERIOD. So long no Event of Default
under Section 6.1 of the Base Indenture has occurred and is continuing, the
Company shall have the right, subject to the provisions of Section 2.10 of the
Base Indenture, at any time during the term of the Junior Subordinated
Debentures, from time to time to defer the payment of interest by extending the
interest payment period of such Junior Subordinated Debentures for a period not
exceeding 10 consecutive semi-annual periods (an "Extension Period"), during
which Extension Period the Company shall have the right to make partial payments
of interest on any Interest Payment Date. No Extension Period shall end on a
date other than an Interest Payment Date or extend beyond the Stated Maturity of
the Junior Subordinated Debentures. To the extent permitted by applicable law,
interest, the payment of which has been deferred because of an Extension Period
imposed pursuant to this Section 4.1, will bear Additional Interest compounded
semi-annually. At the end of the Extension Period, the Company shall pay all
interest then accrued and unpaid on the Junior Subordinated Debentures,
including any Additional Interest, Special Interest and Additional Tax Sums, if
applicable, to the holders of the Junior Subordinated Debentures in whose names
the Junior Subordinated Debentures are registered in the Register on the first
Record Date preceding the end of the Extension Period. Before the termination of
any Extension Period, the Company may further extend such Extension Period,
provided that such period together with all such further extensions thereof
shall not exceed 10 consecutive semi-annual periods, or extend beyond the Stated
Maturity. At any time following the termination of any Extension Period and upon
the payment of any accrued and unpaid Additional Interest, Special Interest and
Additional Tax Sums, if applicable, then due, the Company may elect to begin a
new Extension Period, subject to the foregoing requirements. No interest shall
be due and payable during an Extension Period, except at the end thereof.
During any such Extension Period, the Company shall not (i) declare or pay
any dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of the Company's Capital Stock or (ii)
make any payment of principal of or interest on or repay, repurchase or redeem
any debt securities of the Company that rank on a parity with or junior to this
Debenture or make any guarantee payments with respect to any DRI Guarantee or
other guarantee by the Company of the debt securities of any Subsidiary of the
Company that by its terms ranks on a parity with or junior to this Debenture
(other than (a) dividends or distributions in Common Stock, (b) any declaration
of
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a dividend in connection with the implementation of a Rights Plan, the issuance
of any Capital Stock or any class or series of preferred stock of the Company
under any Rights Plan or the redemption or repurchase of any rights distributed
pursuant to a Rights Plan, (c) payments under any DRI Guarantee relating to the
Preferred Securities issued by the DRI Trust holding the Junior Subordinated
Debentures, and (d) purchases of Common Stock related to the issuance of Common
Stock or rights under any of the Company's benefit plans for its directors,
officers, employees, consultants or advisors).
4.2 NOTICE OF EXTENSION.
(a) If the Property Trustee is the only registered holder of the
Junior Subordinated Debentures at the time the Company elects to begin or extend
an Extension Period, the Company shall give written notice to the Property
Trustee, the Administrative Trustees and the Trustee of its election to begin or
extend any Extension Period at least five Business Days prior to the earlier of
(i) the next succeeding date on which Distributions on the Capital Securities
issued by the Trust would have been payable but for the election to begin or
extend such Extension Period or (ii) subject to applicable principles of federal
securities law, the date the Administrative Trustees are required to give notice
to any securities exchange or other applicable self-regulatory organization or
to holders of such Capital Securities of the record date or the date such
Distributions are payable, but in any event not less than five Business Days
prior to such record date. An Administrative Trustee shall give notice of the
Company's election to begin or extend an Extension Period to the holders of such
Capital Securities.
(b) If the Property Trustee is not the only holder of the Junior
Subordinated Debentures at the time the Company elects to begin or extend an
Extension Period, the Company shall give the holders of the Junior Subordinated
Debentures, the Administrative Trustees and the Trustee written notice of its
election to begin or extend such Extension Period at least 10 Business Days
prior to the earlier of (i) the next succeeding Interest Payment Date or (ii)
subject to applicable principles of federal securities law, the date the Company
is required to give notice of the record or payment date of such interest
payment to any applicable self-regulatory organization or to holders of the
Junior Subordinated Debentures.
(c) The semi-annual period in which any notice is given pursuant to
paragraphs (a) or (b) of this Section 4.2 shall be counted as one of the 10
consecutive semi-annual periods permitted in the maximum Extension Period
permitted under Section 4.1.
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ARTICLE V
EXPENSES
5.1 PAYMENT OF EXPENSES. In connection with the offering, sale and
issuance of the Junior Subordinated Debentures to the Property Trustee and in
connection with the offering, sale and issuance of the Trust Securities by the
Trust, the Company, in its capacity as borrower with respect to the Junior
Subordinated Debentures, shall:
(a) pay all costs and expenses relating to the offering, sale and
issuance of the Junior Subordinated Debentures, including commissions to the
Initial Purchasers payable pursuant to the Purchase Agreement and compensation
of the Trustee under the Indenture in accordance with the provisions of Section
7.6 of the Base Indenture;
(b) pay all costs and expenses of the Trust (including, but not
limited to, costs and expenses relating to the organization of the Trust, the
fees and expenses of the Property Trustee and the Delaware Trustee, the costs
and expenses relating to the operation of the Trust, including without
limitation, costs and expenses of accountants, attorneys, statistical or
bookkeeping services, expenses for printing and engraving and computing or
accounting equipment, paying agent(s), registrar(s), transfer agent(s),
duplicating, travel and telephone and other telecommunications expenses and
costs and expenses incurred in connection with the acquisition, financing, and
disposition of Trust assets);
(c) pay all costs and expenses related to the enforcement by the
Property Trustee of the rights of the registered holders of the Capital
Securities;
(d) be primarily liable for any indemnification obligations arising
with respect to the Trust Agreement and the Purchase Agreement; and
(e) pay any and all taxes and all liabilities, costs and expenses with
respect to such taxes of the Trust (but not including withholding taxes imposed
on holders of Capital Securities or Common Securities of the Trust).
5.2 PAYMENT UPON RESIGNATION OR REMOVAL. Upon termination of this First
Supplemental Indenture or the Base Indenture or the removal or resignation of
the Trustee pursuant to Section 7.10 of the Base Indenture, the Company shall
pay to the Trustee all amounts owed to it under Section 7.6 of the Base
Indenture accrued to the date of such termination, removal or resignation. Upon
termination of the Trust
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Agreement or the removal or resignation of the Delaware Trustee or the Property
Trustee, as the case may be, pursuant to Section 8.10 of the Trust Agreement,
the Company shall pay to the Delaware Trustee or the Property Trustee, and their
respective counsel, as the case may be, all amounts owed to them under Section
8.7 of the Trust Agreement accrued to the date of such termination, removal or
resignation.
ARTICLE VI
FORM OF JUNIOR SUBORDINATED DEBENTURE
6.1 FORM OF JUNIOR SUBORDINATED DEBENTURE. The Junior Subordinated
Debentures and the Trustee's Certificate of Authentication to be endorsed
thereon are to be substantially in the form attached hereto as Exhibit A.
ARTICLE VII
ORIGINAL ISSUE OF JUNIOR SUBORDINATED DEBENTURES
7.1 ORIGINAL ISSUE OF JUNIOR SUBORDINATED DEBENTURES.
(a) Junior Subordinated Debentures in the aggregate principal amount
of up to $257,732,000 may be executed by the Company and delivered to the
Trustee for authentication by it, and the Trustee shall thereupon authenticate
and deliver said Junior Subordinated Debentures to or upon the written order of
the Company, signed by its Chairman of the Board, any Vice Chairman of the
Board, the Chief Executive Officer, the President, or any Vice President
(whether or not designated by a number or word or words added before or after
the title Vice President) and by its Treasurer, an Assistant Treasurer, the
Controller, its Corporate Secretary or an Assistant Corporate Secretary, without
any further corporate action by the Company as follows: (i) $257,732,000
aggregate principal amount of Private Debentures to be originally issued on the
Closing Date (as defined in the Purchase Agreement) and (ii) $257,732,000
aggregate principal amount of Exchange Debentures to be issued upon surrender of
and in exchange for the Private Debentures pursuant to Section 8.1.
(b) Each Exchange Debenture shall be issued only upon surrender of and
in exchange for a like aggregate principal amount of Private Debentures and any
Private Debentures surrendered in exchange for Exchange Debentures shall be
canceled. Accordingly, the aggregate principal amount of Private Debentures and
Exchange Debentures that may be outstanding at any time shall not exceed
$257,732,000.
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ARTICLE VIII
EXCHANGE OF SECURITIES
8.1 MANDATORY TENDER IN EXCHANGE OFFER. The Junior Subordinated
Debentures will not be convertible into any other securities or property of the
Company. The Junior Subordinated Debentures may not be exchanged for Securities
of any other series, except that if the Company effects an exchange offer
pursuant to Section 2(a) of the Debenture Exchange and Registration Rights
Agreement and, if pursuant to such exchange offer, the Company offers to
exchange any Private Debentures for Exchange Debentures, then, to the extent
permitted by law, each holder of the Private Debentures shall be obligated to
tender all the Private Debentures held by such holder in exchange for a like
principal amount of the Exchange Debentures in accordance with the Company's
instructions.
ARTICLE IX
MISCELLANEOUS
9.1 RATIFICATION OF INDENTURE; FIRST SUPPLEMENTAL INDENTURE CONTROLS. The
Indenture, as supplemented by this First Supplemental Indenture, is in all
respects ratified and confirmed, and this First Supplemental Indenture shall be
deemed part of the Indenture in the manner and to the extent herein and therein
provided. The provisions of this First Supplemental Indenture shall supersede
the provisions of the Indenture to the extent the Indenture is inconsistent
herewith.
9.2 TRUSTEE NOT RESPONSIBLE FOR RECITALS. The recitals herein contained
are made by the Company and not by the Trustee, and the Trustee assumes no
responsibility for the correctness thereof. The Trustee makes no representation
as to the validity or sufficiency of this First Supplemental Indenture.
9.3 GOVERNING LAW. This First Supplemental Indenture and each Junior
Subordinated Debenture shall be deemed to be a contract made under the internal
laws of the State of New York, and for all purposes shall be governed by and
construed in accordance with the laws of said State, without regard to the
conflicts of law principles thereof.
9.4 SEPARABILITY. In case any one or more of the provisions contained in
this First Supplemental Indenture or in the Junior Subordinated Debentures shall
for any reason be held to be invalid,
19
<PAGE>
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this First
Supplemental Indenture or of the Junior Subordinated Debentures, but this First
Supplemental Indenture and the Junior Subordinated Debentures shall be construed
as if such invalid or illegal or unenforceable provision had never been
contained herein or therein.
9.5 COUNTERPARTS. This First Supplemental Indenture may be executed in
any number of counterparts each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
20
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental
Indenture to be duly executed as of the date first above written.
DOMINION RESOURCES, INC.
By: /s/ Edgar M. Roach, Jr.
------------------------------
Name: Edgar M. Roach, Jr.
Title: Executive Vice President
THE CHASE MANHATTAN BANK, AS TRUSTEE
By: /s/ G. McFarlane
-------------------------------
Name: G. McFarlane
Title: Vice President
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EXHIBIT A
(FORM OF FACE OF JUNIOR SUBORDINATED DEBENTURE)
[If the Debenture is to be a Global Debenture, insert the following--THIS
DEBENTURE IS A GLOBAL DEBENTURE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A
DEPOSITARY. THIS DEBENTURE IS EXCHANGEABLE FOR JUNIOR SUBORDINATED DEBENTURES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY
IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS
DEBENTURE (OTHER THAN A TRANSFER OF THIS DEBENTURE 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) MAY BE REGISTERED EXCEPT IN
SUCH LIMITED CIRCUMSTANCES.
UNLESS THIS DEBENTURE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY DEBENTURE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY A PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.]
[Prior to Transfer Restriction Termination Date, INSERT the following in
Private Debentures--THE DEBENTURES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND,
ACCORDINGLY, MAY NOT BE OFFERED, SOLD, OR OTHERWISE TRANSFERRED WITHIN THE
UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS
SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, EACH HOLDER OF
THE DEBENTURES EVIDENCED HEREBY, AND EACH PERSON THAT ACQUIRES A BENEFICIAL
INTEREST IN SUCH DEBENTURES, (1) REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B)
IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501
(a)(1),(2),(3) OR (7) UNDER THE SECURITIES ACT) ("INSTITUTIONAL ACCREDITED
INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THE DEBENTURES
EVIDENCED HEREBY IN AN OFFSHORE TRANSACTION, (2) AGREES THAT IT WILL NOT, PRIOR
TO THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF THE DEBENTURES
EVIDENCED HEREBY UNDER RULE 144(k) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR
PROVISION), OFFER, RESELL OR OTHERWISE TRANSFER THE DEBENTURES EVIDENCED HEREBY
EXCEPT (A) TO DOMINION
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RESOURCES, INC. OR A SUBSIDIARY THEREOF, (B) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (C) TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (D)
TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES
TO THE CHASE MANHATTAN BANK, AS PROPERTY TRUSTEE, A SIGNED LETTER CONTAINING
CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER
OF THE DEBENTURES EVIDENCED HEREBY (THE FORM OF WHICH LETTER CAN BE OBTAINED
FROM SUCH TRUSTEE), (E) OUTSIDE THE UNITED STATES IN COMPLIANCE WITH RULE 904
UNDER THE SECURITIES ACT OR (F) PURSUANT TO AN EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) AND (G) IN EACH
CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF THE STATES OF THE
UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION, AND (3) AGREES THAT IT WILL
DELIVER TO EACH PERSON TO WHOM THE DEBENTURES EVIDENCED HEREBY ARE TRANSFERRED A
NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IF THE PROPOSED TRANSFEREE IS
AN INSTITUTIONAL ACCREDITED INVESTOR OR A TRANSFEREE TAKING DELIVERY IN THE FORM
OF BENEFICIAL INTERESTS IN A GLOBAL SECURITY [If the Debenture is to be a Global
Debenture, insert the following--OTHER THAN THE SECURITY ON WHICH THIS LEGEND IS
ATTACHED], THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE CHASE
MANHATTAN BANK, AS PROPERTY TRUSTEE, SUCH CERTIFICATIONS OR OTHER INFORMATION AS
DOMINION RESOURCES, INC. MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS
BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO,
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THIS LEGEND WILL BE REMOVED
AFTER THE EXPIRATION OF (I) WITH RESPECT TO DEBENTURES INITIALLY RESOLD IN
RELIANCE ON REGULATION S, THE RESTRICTED PERIOD OR (II) WITH RESPECT TO
DEBENTURES INITIALLY RESOLD TO INSTITUTIONAL ACCREDITED INVESTORS OR QUALIFIED
INSTITUTIONAL BUYERS, THE HOLDING PERIOD APPLICABLE TO SALES OF THE DEBENTURES
EVIDENCED HEREBY UNDER RULE 144(k) UNDER THE SECURITIES ACT OR, IN ANY CASE,
SUCH EARLIER TIME AS A TRANSFER OF THE DEBENTURES EVIDENCED HEREBY IS MADE
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT. AS
USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "RESTRICTED PERIOD," "UNITED
STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER
THE SECURITIES ACT.]
THE DEBENTURES EVIDENCED HEREBY WILL BE ISSUED, AND MAY BE TRANSFERRED,
ONLY IN BLOCKS HAVING A PRINCIPAL AMOUNT OF NOT LESS THAN $100,000. ANY
TRANSFER, SALE OR OTHER DISPOSITION OF SUCH DEBENTURES IN A BLOCK HAVING A
PRINCIPAL AMOUNT OF LESS THAN $100,000 SHALL BE DEEMED TO BE VOID AND OF NO
LEGAL EFFECT WHATSOEVER. ANY SUCH TRANSFEREE SHALL BE DEEMED NOT TO BE THE
HOLDER OF SUCH DEBENTURES FOR ANY PURPOSE, INCLUDING BUT NOT LIMITED TO THE
RECEIPT OF PAYMENTS IN RESPECT OF SUCH DEBENTURES, AND SUCH TRANSFEREE SHALL BE
DEEMED TO HAVE NO INTEREST WHATSOEVER IN SUCH DEBENTURES.
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<PAGE>
[INSERT the following in Private Debentures -- THE HOLDER HEREOF, BY ITS
ACCEPTANCE OF THIS DEBENTURE, IS DEEMED TO HAVE AGREED TO BE BOUND BY THE
PROVISIONS OF THE DEBENTURE EXCHANGE AND REGISTRATION RIGHTS AGREEMENT.]
NUMBER R-1 [up to]/1/ $257,732,000
DOMINION RESOURCES, INC. 7.83% JUNIOR SUBORDINATED
DEFERRABLE INTEREST DEBENTURE
DUE DECEMBER 1, 2027
Dated:__________________ CUSIP NO: ___________________]
Registered Holder:
DOMINION RESOURCES, INC., a corporation duly organized and existing under
the laws of the Commonwealth of Virginia (herein referred to as the "Company,"
which term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to the Registered
Holder named above, the principal sum [of ___________________________
Dollars($__________))]/2/ [specified in the Schedule annexed hereto]/3/ on
December 1, 2027, in such coin or currency of the United States of America as at
the time of payment is legal tender for the payment of public and private debt.
The Company further promises to pay to the registered Holder hereof as
hereinafter provided (a) interest on said principal sum (subject to deferral as
set forth herein) at the rate per annum specified in the title of this debenture
(the "Debenture"), in like coin or currency, semiannually in arrears on the 1st
day of June and December (each an "Interest Payment Date") commencing June 1,
1998, from the Interest Payment Date next preceding the date hereof to which
interest has been paid or duly provided for (unless (i) no interest has yet been
paid or duly provided for on this Debenture, in which case from December 8,
1997, or (ii) the date hereof is before an Interest Payment Date but after the
related Record Date (as defined below), in which case from such following
Interest Payment Date; provided, however, that if the Company shall default in
payment of the interest due on such following Interest Payment Date, then from
the next preceding Interest Payment Date to which interest has been paid or duly
provided for), until the principal hereof is paid or duly provided for, plus (b)
Additional Interest, as defined in the Indenture, to the extent permitted by
applicable law, on any interest payment that is not made on the applicable
Interest Payment Date, which shall accrue at the rate per annum specified in the
title of this Debenture, compounded semiannually, plus (c) Special Interest, to
the extent described below.
__________________
/1/ Insert in Global Debentures.
/2/ Insert in all Junior Subordinated Debentures other than Global
Debentures.
/3/ Insert in Global Debentures.
A-3
<PAGE>
Interest Payment Date but after the related Record Date (as defined below), in
which case from such following Interest Payment Date; provided, however, that if
the Company shall default in payment of the interest due on such following
Interest Payment Date, then from the next preceding Interest Payment Date to
which interest has been paid or duly provided for), until the principal hereof
is paid or duly provided for, plus (b) Additional Interest, as defined in the
Indenture, to the extent permitted by applicable law, on any interest payment
that is not made on the applicable Interest Payment Date, which shall accrue at
the rate per annum specified in the title of this Debenture, compounded
semiannually, plus (c) Special Interest, to the extent described below.
The interest so payable will, subject to certain exceptions provided in the
Indenture hereinafter referred to, be paid to the person in whose name this
Debenture is registered at the close of business on the Record Date next
preceding such Interest Payment Date. The Record Date shall be the Business Day
next preceding the Interest Payment Date, unless this Debenture is registered to
a holder other than the Property Trustee or a nominee of The Depository Trust
Company, in which case the Record Date will be the fifteenth day of the calendar
month next preceding such Interest Payment Date or, if such fifteenth day is not
a Business Day, then the Business Day next preceding such day. This Debenture
may be presented for payment of principal and interest at the principal
corporate trust office of The Chase Manhattan Bank, as paying agent for the
Company, maintained for that purpose in the Borough of Manhattan, The City of
New York; provided, however, that payment of interest may be made at the option
of the Company (i) by check mailed to such address of the person entitled
thereto as the address shall appear on the Register of the Debentures or (ii) by
transfer to an account maintained by the Person entitled thereto as specified in
the Register, provided that proper transfer instructions have been received by
the Record Date. Interest on the Debenture will be computed on the basis of a
360-day year of twelve 30-day months.
So long as no Event of Default has occurred and is continuing, the Company
shall have the right at any time during the term of this Debenture from time to
time to defer payment of interest on this Debenture, for up to 10 consecutive
semiannual interest payment periods with respect to each deferral period (each
an "Extension Period"), during which Extension Periods the Company shall have
the right to make partial payments of interest on any Interest Payment Date;
provided, however, that no Extension Period shall end on a date other than an
Interest Payment Date or extend beyond December 1, 2027. At the end of each
Extension Period, the Company shall pay all interest then accrued and unpaid
(together with any Additional Interest thereon to the extent permitted by
applicable law, Special Interest, and Additional Tax Sums, if applicable).
During any such Extension Period, the Company shall not,
A-4
<PAGE>
and shall cause any Subsidiary of the Company not to, (i) declare or pay any
dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of the Company's Capital Stock (which
includes Common Stock and preferred stock) or (ii) make any payment of principal
of or interest or premium, if any, on or repay, repurchase or redeem any debt
securities of the Company that rank on a parity with or junior to this Debenture
or make any guarantee payments with respect to any DRI Guarantee or other
guarantee by the Company of the debt securities of any Subsidiary of the Company
that by its terms ranks on a parity with or junior to this Debenture (other than
(a) dividends or distributions in Common Stock, (b) any declaration of a
dividend in connection with the implementation of a Rights Plan, the issuance of
any Capital Stock or any class or series of preferred stock of the Company under
any Rights Plan or the redemption or repurchase of any rights distributed
pursuant to a Rights Plan, (c) payments under any DRI Guarantee relating to the
Preferred Securities issued by the DRI Trust holding this Debenture, and (d)
purchases of Common Stock related to the issuance of Common Stock or rights
under any of the Company's benefit plans for its directors, officers, employees,
consultants or advisors). Prior to the termination of any such Extension Period,
the Company may further extend such Extension Period; provided, however, that no
Extension Period shall exceed 10 consecutive semiannual periods or extend beyond
December 1, 2027. At any time following the termination of any Extension Period
and the payment of all accrued and unpaid interest (together with any Additional
Interest, Special Interest and Additional Tax Sums, if applicable) then due, the
Company may elect to begin a new Extension Period, subject to the above
requirements. No interest shall be due and payable during an Extension Period
except at the end thereof. If the Property Trustee is the only registered holder
of the Debentures of this series, the Company shall give written notice to the
Property Trustee and the Trustee of its election to begin or extend any
Extension Period at least five Business Days prior to the earlier of (i) the
next succeeding date on which Distributions on the Capital Securities issued by
the relevant DRI Trust would have been payable but for the election to begin or
extend such Extension Period or (ii) the date the Administrative Trustees are
required to give notice to any securities exchange or other applicable self-
regulatory organization or to holders of such Capital Securities of the record
date or the date such Distributions are payable, but in any event not less than
five Business Days prior to such record date. An Administrative Trustee shall
give notice of the Company's election to begin or extend an Extension Period to
the holders of such Capital Securities. If the Property Trustee is not the only
holder of the Debentures of this series at the time the Company elects to begin
or extend an Extension Period, the Company shall give the holders of the
Debentures of this series and the Trustee written notice of its election to
begin or extend such Extension Period at least 10 Business Days prior to the
earlier of (i) the next
A-5
<PAGE>
succeeding Interest Payment Date or (ii) the date the Company is required to
give notice of the record or payment date of such interest payment to any
applicable self-regulatory organization or to holders of the Debentures of this
series.
This Debenture is issued pursuant to an Indenture, dated as of December 1,
1997, between the Company, as issuer, and The Chase Manhattan Bank, a New York
banking corporation, as trustee, as supplemented by a First Supplemental
Indenture dated as of December 1, 1997 (as further supplemented or amended from
time to time, the "Indenture"). Reference is made to the Indenture for a
description of the respective rights, limitations of rights, obligations, duties
and immunities thereunder of the Trustee, the Company and the Holders (the word
"Holder" or "Holders" meaning the registered holder or registered holders) of
the Debentures. Capitalized terms used herein but not defined herein shall have
the respective meanings assigned thereto in the Indenture. By acceptance of
this Debenture, the Holder hereof agrees to be bound by the provisions of the
Indenture.
The Debentures of this series are limited to the aggregate principal amount
of Two Hundred and Fifty-Seven Million and Seven Hundred and Thirty-Two Thousand
Dollars ($257,732,000).
The Debentures evidenced by this Certificate may be transferred or
exchanged only in minimum denominations of $100,000 and integral multiples of
$1,000 in excess thereof, and any attempted transfer, sale or other disposition
of Debentures in a denomination of less than $100,000 shall be deemed to be void
and of no legal effect whatsoever.
The indebtedness of the Company evidenced by this Debenture, including the
principal hereof and interest hereon, is, to the extent and in the manner set
forth in the Indenture, subordinate and junior in right of payment to the
Company's obligations to Holders of Senior Indebtedness of the Company and each
Holder of this Debenture, by acceptance hereof, agrees to and shall be bound by
such provisions of the Indenture and all other provisions of the Indenture.
This Debenture shall not be valid or become obligatory for any purpose
until the certificate of authentication hereon shall have been signed by or on
behalf of the Trustee under the Indenture.
IN WITNESS WHEREOF, DOMINION RESOURCES, INC. has caused this instrument to
be signed, manually or in facsimile, by its Chairman of the Board, or its Chief
Executive Officer, or its President, or any Vice President and by its Treasurer
or an Assistant Treasurer or its Controller or its Corporate Secretary or an
Assistant Corporate Secretary under the corporate seal of Dominion Resources,
Inc.
A-6
<PAGE>
DOMINION RESOURCES, INC.
By: ___________________________________
Name:
Title:
[SEAL]
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities, of the series designated herein, referred to
in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK, as Trustee
By: ____________________________
Authorized Officer
A-7
<PAGE>
REVERSE OF DEBENTURE
As provided in and subject to the provisions in the Indenture, the Company
shall have the right redeem this Debenture, in whole or in part, at any time on
or after December 1, 2007, at the Optional Prepayment Prices set forth below
(expressed as percentages of the principal amount to be prepaid) plus accrued
and unpaid interest thereon to the applicable date of prepayment if prepaid
during the 12-month period beginning on December 1, of the years indicated
below:
Year Percentage
---- ----------
2007 103.915%
2008 103.524%
2009 103.132%
2010 102.741%
2011 102.349%
2012 101.958%
2013 101.566%
2014 101.174%
2015 100.783%
2016 100.391%
2017 and thereafter 100.000%
In addition, upon the occurrence and during the continuation of a Tax Event
or Investment Company Event, the Company may, at its option, at any time, prior
to the Initial Optional Prepayment Date, within 90 days of the occurrence of
such Tax Event or Investment Company Event, redeem this Debenture in whole (but
not in part) at a prepayment price (the "Event Prepayment Price") equal to the
greater of (i) 100% of the principal amount hereof or (ii) as determined by a
Quotation Agent, the sum of the present values of the Optional Prepayment Price
that would be payable on the Initial Optional Prepayment Date, together with the
present values of scheduled payments of interest from the prepayment date to the
Initial Optional Prepayment Date, in each case discounted to the prepayment date
on a semi-annual basis at the Adjusted Treasury Rate, plus, in each case,
accrued interest thereon to but excluding the date of prepayment.
In the case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of all of the Debentures may be
declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the Indenture.
A-8
<PAGE>
Any consent or waiver by the Holder of this Debenture given as provided in
the Indenture (unless effectively revoked as provided in the Indenture) shall be
conclusive and binding upon such Holder and upon all future Holders of this
Debenture and of any Debenture issued in exchange, registration of transfer, or
otherwise in lieu hereof irrespective of whether any notation of such consent or
waiver is made upon this Debenture or such other Debentures. No reference herein
to the Indenture and no provision of this Debenture or of the Indenture shall
alter or impair the obligation of the Company, which is absolute and
unconditional, to pay the principal of and interest on this Debenture, at the
places, at the respective times, at the rate and in the coin or currency herein
prescribed.
If the Company does not comply with certain of its obligations under the
Registration Rights Agreements (as defined in the Indenture), this Debenture
shall bear additional interest ("Special Interest") at a rate per annum
specified in such Agreements, in addition to the interest provided for in
Section 2.5(a) of the First Supplemental Indenture to the Indenture.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Debenture may be registered on the Register of the
Debentures of this series upon surrender of this Debenture for registration of
transfer at the offices maintained by the Company or its agent for such purpose,
duly endorsed by the Holder hereof or his attorney duly authorized in writing,
or accompanied by a written instrument of transfer in form satisfactory to the
Company and the Securities registrar duly executed by the Holder hereof or his
attorney duly authorized in writing, but without payment of any charge other
than a sum sufficient to reimburse the Company for any tax or other governmental
charge incident thereto. Upon any such registration of transfer, a new
Debenture or Debentures of authorized denomination or denominations for the same
aggregate principal amount will be issued to the transferee in exchange herefor.
Prior to due presentment for registration of transfer of this Debenture,
the Company, the Trustee, and any agent of the Company or the Trustee may deem
and treat the person in whose name this Debenture shall be registered upon the
Register of the Debentures of this series as the absolute owner of this
Debenture (whether or not this Debenture shall be overdue and notwithstanding
any notation of ownership or other writing hereon) for the purpose of receiving
payment of or on account of the principal hereof and, subject to the provisions
on the face hereof, interest due hereon and for all other purposes; and neither
the Company nor the Trustee nor any such agent shall be affected by any notice
to the contrary.
A-9
<PAGE>
No recourse shall be had for the payment of the principal of or interest on
this Debenture, or for any claim based hereon or otherwise in respect hereof, or
based on or in respect of the Indenture or any indenture supplemental thereto,
against any stockholder, officer, director or employee, as such, past, present
or future, of the Company or of any successor corporation, either directly or
through the Company, whether by virtue of any constitution, statute or rule of
law, or by the enforcement of any assessment or penalty or otherwise, all such
liability being, by the acceptance hereof and as a part of the consideration for
the issue hereof, expressly waived and released.
The Company and, by acceptance of this Debenture or a beneficial interest
in this Debenture, each holder hereof and any person acquiring a beneficial
interest herein, agree that for United States federal, state and local tax
purposes it is intended that this Debenture constitute indebtedness.
This Debenture shall be deemed to be a contract made under the laws of the
State of New York (without regard to conflicts of laws principles thereof) and
for all purposes shall be governed by, and construed in accordance with, the
laws of said State.
A-10
<PAGE>
EXHIBIT A-1
[Prior to Transfer Restriction Termination Date, INSERT the following in Private
Debentures in Definitive form --]
FORM OF CERTIFICATE OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
Please insert Social Security or other taxpayer identification number of
transferee:
_________________________________________________________________
_________________________________________________________________
(Name and Address of Transferee, including Zip Code, must be
printed or typewritten)
_________________________________________________________________
the within Junior Subordinated Deferrable Interest Debenture (the "Debenture")
and hereby irrevocably constitutes and appoints _________________________
attorney to transfer said Debenture on the Register of the Debentures, with full
power of substitution in the premises.
In connection with any transfer of the within Debenture occurring prior to such
date as restrictions on the transfer of such security imposed by the Securities
Act of 1933, as amended (the "Securities Act"), and the rules and regulations
thereunder shall be terminated in accordance with the Indenture, the undersigned
confirms that such Debenture is being transferred:
[___] To Dominion Resources, Inc. or a subsidiary thereof; or
[___] Pursuant to an effective registration statement under the
Securities Act; or
[___] Pursuant to and in compliance with Rule 144A under the Securities
Act; or
[___] Pursuant to and in compliance with Regulation S under the
Securities Act; or
A-1-1
<PAGE>
[___] To an Institutional Accredited Investor pursuant to and in
compliance with the Securities Act; or
[___] Pursuant to and in compliance with Rule 144 under the Securities
Act:
and unless the box below is checked, the undersigned confirms that such
Debenture is not being transferred to an "affiliate" of Dominion Resources,
Inc., as defined in Rule 144 under the Securities Act (an "Affiliate"):
[___] The transferee is an Affiliate of Dominion Resources, Inc.
Date: ____________ , _____
___________________________________
___________________________________
Signature(s)
Signature(s) must be guaranteed by a commercial bank or trust company
or a member firm of a major stock exchange.
NOTICE: The signature to this assignment must correspond with the name as
it appears upon the face of the within Junior Subordinated Deferrable Interest
Debenture in every particular, without alteration or enlargement or any change
whatever.
A-1-2
<PAGE>
EXHIBIT A-2
[Following Transfer Restriction Termination Date, INSERT the following --]
FORM OF ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfer unto
Please insert Social Security or other
identifying number of assignee:
_________________________
_________________________________________________________________
(Name and Address of Assignee, including Zip Code,
must be printed or typewritten)
_________________________________________________________________
the within Junior Subordinated Deferrable Interest Debenture (the "Debenture"),
and all rights thereunder, hereby irrevocably constituting and appointing
___________________________________ Attorney to transfer said Debenture on the
Register of the Debentures, with full power of substitution in the premises.
Date:____________________
______________________________
______________________________
Signature(s)
Signature(s) must be guaranteed by a commercial bank or
trust company or a member firm of a major stock
exchange. NOTICE: The signature to this assignment must
correspond with the name as it appears upon the face of
the within Junior Subordinated Deferrable Interest
Debenture in every particular, without alteration or
enlargement or any change whatever.
A-2-1
<PAGE>
EXHIBIT A-3
[For Global Debentures, INSERT the following --]
[FORM OF SCHEDULE FOR ENDORSEMENTS ON GLOBAL DEBENTURE
TO REFLECT CHANGES IN PRINCIPAL AMOUNT]
The initial principal amount evidenced by this Global Debenture is $__________.
Changes to Principal Amount of Global Debenture
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
Principal Amount by
which this Global
Debenture is to be
Reduced or Increased, Remaining Principal
and Reason for Amount of this Notation
Date Reduction or Increase Global Debenture Made by
- ---- --------------------- ---------------- -------
- --------------------------------------------------------------------------------
<S> <C> <C> <C>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
</TABLE>
A-3-1
<PAGE>
EXHIBIT B
FORM OF LETTER TO BE DELIVERED BY
INSTITUTIONAL ACCREDITED INVESTORS
The Chase Manhattan Bank, 450 W. 33rd Street, New York, New York 10001,
Attention: Corporate Trust Office
Dear Sirs and Mesdames:
We understand that the 7.83% Junior Subordinated Deferrable Interest
Debentures (the "Debentures") of Dominion Resources, Inc. ("Dominion Resources")
are being offered in a transaction not involving any public offering within the
United States within the meaning of the Securities Act of 1933, as amended (the
"Securities Act"), and that the Debentures have not been registered under the
Securities Act, and we agree, on our own behalf and on behalf of each account
for which we acquire any Debentures, that if, prior to the expiration of the
holding period applicable to sales of any Debenture under Rule 144(k) under the
Securities Act, we decide to offer, resell or otherwise transfer such Debenture,
such Debenture may be offered, resold or otherwise transferred only (i) to
Dominion Resources or a subsidiary thereof, (ii) pursuant to an effective
registration statement under the Securities Act, (iii) to a person who is a
"qualified institutional buyer" (as defined in Rule 144A under the Securities
Act) in compliance with Rule 144A, (iv) to an Institutional Accredited Investor
(as defined below) that, prior to such transfer, furnishes to The Chase
Manhattan Bank, as trustee, a signed letter in the form hereof and such other
opinions and certifications that the Property Trustee may request, (v) outside
the United States in compliance with Rule 904 under the Securities Act or (vi)
pursuant to the exemption from registration provided by Rule 144 under the
Securities Act (if available) and (vii) in each case, in accordance with any
applicable securities laws of the States of the United States or any other
applicable jurisdiction and in accordance with the legends set forth on the
Debentures. We further agree to provide any person purchasing any of the
Debentures from us a notice advising such purchaser that resales of such
securities are restricted as stated herein. We understand that any Debentures
will be in the form of definitive physical certificates and that such
certificates will bear a legend reflecting the substance of this paragraph.
B-1
<PAGE>
We confirm that:
(i) we are an "accredited investor" within the meaning of Rule
501(a)(1), (2) or (3) under the Securities Act or an entity in which all of the
equity owners are accredited investors within the meaning of Rule 501(a)(1), (2)
and (3) under the Securities Act (an "Institutional Accredited Investor");
(ii) (A) any acquisition of Debentures by us will be for our own account
or for the account of one or more other Institutional Accredited Investors or as
fiduciary for the account of one or more trusts, each of which is an "accredited
investor" within the meaning of Rule 501(a)(7) under the Securities Act and for
each of which we exercise sole investment discretion or (B) we are a "bank,"
within the meaning of Section 3(a)(2) of the Securities Act, or a "savings and
loan association" or other institution described in Section 3(a)(5)(A) of the
Securities Act that is acquiring Debentures as fiduciary for the account of one
or more institutions for which we exercise sole investment discretion;
(iii) in the event that we acquire any Debentures, we will acquire
Debentures having a minimum purchase price of not less than $100,000 for our own
account or for any separate account for which we are acting;
(iv) we have such knowledge and experience in financial and business
matters that we are capable of evaluating the merits and risks of an investment
in the Debentures;
(v) we are not acquiring Debentures with a view to resale or
distribution thereof or with any present intention of offering or selling
Debentures, except as permitted above; provided that the disposition of our
property and property of any accounts for which we are acting as fiduciary shall
remain at all times within our control; and
(vi) we have had access to such financial and other information and
have been afforded the opportunity to ask such questions of representatives of
Dominion Resources and receive answers thereto, as we deem necessary in
connection with our decision to acquire Debentures.
We acknowledge that Dominion Resources, you and others will rely upon our
confirmations, acknowledgments and agreements set forth herein, and we agree to
notify you promptly in writing if any of our representations or warranties
herein ceases to be accurate and complete.
B-2
<PAGE>
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
INTERNAL LAWS OF THE STATE OF NEW YORK.
(Name of Transferee)
By: ____________________________________
Name:
Title:
Address:
B-3
<PAGE>
EXHIBIT C
FORM OF TRANSFER CERTIFICATE--144A GLOBAL
DEBENTURE OR IAI DEFINITIVE TO REGULATION S GLOBAL DEBENTURE
The Chase Manhattan Bank, 450 W. 33rd Street, New York, New York 10001,
Attention: Corporate Trust Office
Re: Dominion Resources, Inc. (the "Company") 7.83% Junior Subordinated
Deferrable Interest Debentures due December 1, 2027 (the "Debentures")
Reference is hereby made to the Indenture (the "Base Indenture") dated as
of December 1, 1997 between the Company and The Chase Manhattan Bank, as Trustee
(as supplemented by the First Supplemental Indenture (the "Supplemental
Indenture") dated December 1, 1997, the "Indenture"). Capitalized terms used but
not defined herein shall have the meanings given to them in the Indenture.
This letter relates to _________________ Private Debentures which are
evidenced by a (i) 144A Global Debenture (CUSIP No. ________) and held
indirectly with the Depositary or (ii) a Definitive Debenture held directly, in
either case, in the name of _______________ [insert name of transferor] (the
"Transferor"). The Transferor has requested a transfer of such beneficial
interest in the Private Debentures to a Person that will take delivery thereof
in a transaction effected pursuant to and in accordance with Rule 904 under the
United States Securities Act of 1933, as amended (the "Securities Act"), and
accordingly the Transferor does hereby further certify that the Transferor's
interest in the Private Debentures is being transferred in accordance with the
transfer restrictions set forth in the Indenture and in the Private Debenture.
The offer of the Private Debentures was not made to a person in the United
States;
(A) either:
(i) at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any person acting on its behalf
reasonably believed that the transferee was outside the United States, or
(ii) the transaction was executed in, or through the facilities of a
designated offshore securities market and neither the
C-1
<PAGE>
Transferor nor any person acting on its behalf knows that the transaction was
pre-arranged with a buyer in the United States;
(B) no directed selling efforts have been made in contravention of the
requirements of Rule 904(b) of Regulation S, as applicable;
(C) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
(D) we have advised the transferee of the transfer restrictions applicable
to the Private Debentures.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceeding or official inquiry with respect
to the matters covered hereby. Terms used in this certificate and not otherwise
defined herein or in the Indenture have the meanings set forth in Regulation S
under the Securities Act.
Dated:
[Insert Name of Transferor]
By: ________________________________
Name:
Title:
(If the registered owner is a corporation, partnership or fiduciary, the
title of the Person signing on behalf of such registered owner must be stated.)
C-2
<PAGE>
EXHIBIT D
FORM OF TRANSFER CERTIFICATE--
REGULATION S GLOBAL DEBENTURE OR IAI DEFINITIVE
TO 144A GLOBAL DEBENTURE
The Chase Manhattan Bank, 450 W. 33rd Street, New York, New York, 10001,
Attention: Corporate Trust Office
Re: Dominion Resources, Inc. (the "Company") 7.83% Junior Subordinated
Deferrable Interest Debentures due December 1, 2027 (the "Debentures")
Reference is hereby made to the Indenture (the "Base Indenture") dated as
of December 1, 1997 between the Company and The Chase Manhattan Bank, as Trustee
(as supplemented by the First Supplemental Indenture (the "Supplemental
Indenture") dated as of December 1, 1997, the "Indenture"). Capitalized terms
used but not defined herein shall have the meanings given to them in the
Indenture.
This letter relates to _________________ Private Debentures which are
evidenced by (i) a Regulation S Global Debenture (CUSIP No. _________) and held
indirectly with the Depositary or (ii) a Definitive Debenture held directly, in
either case, in the name of _________________ [insert name of transferor] (the
"Transferor"). The Transferor has requested a transfer of such beneficial
interest in the Private Debentures to a Person that will take delivery thereof
in a transaction effected pursuant to and in accordance with Rule 144A under the
United States Securities Act of 1933, as amended (the "Securities Act"), and
accordingly the Transferor does hereby certify that (i) the Transferor's
interest in the Private Debentures is being transferred in accordance with the
transfer restrictions set forth in the Indenture and in the Private Debenture;
and (ii) the transferee is a person who the Transferor reasonably believes is a
"qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act, purchasing for its own account or the account of a qualified
institutional buyer in a transaction meeting the requirements of Rule 144A, in
accordance with all applicable securities laws of the states of the United
States and other jurisdictions.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceeding or official inquiry with respect
to the matters covered hereby.
D-1
<PAGE>
Dated:
[Insert Name of Transferor]
By: ______________________________
Name:
Title:
(If the registered owner is a corporation, partnership or fiduciary, the title
of the Person signing on behalf of such registered owner must be stated.)
D-2
<PAGE>
Exhibit 4.3
CERTIFICATE OF TRUST
OF
DOMINION RESOURCES CAPITAL TRUST I
THIS CERTIFICATE OF TRUST of Dominion Resources Capital Trust I (the
"Trust"), dated as of October 31, 1997, is being duly executed and filed by the
undersigned, as trustee, to form a business trust under the Delaware Business
Trust Act (12 Del. C. (S)3801, et seq.).
1. Name. The name of the business trust formed hereby is Dominion
----
Resources Capital Trust I.
2. Delaware Trustee. The name and business address of the trustee of
----------------
the Trust with a principal place of business in the State of Delaware is Chase
Manhattan Bank Delaware, 1201 Market Street, Wilmington, Delaware 19801.
3. Effective Date. This Certificate of Trust shall be effective upon
--------------
filing.
IN WITNESS WHEREOF, the undersigned trustee of the Trust has executed
this Certificate of Trust as of the date first-above written.
CHASE MANHATTAN BANK DELAWARE,
not in its individual capacity
but solely as trustee of the Trust
By: /s/ Denis Kelly
--------------------------------
Name: DENIS KELLY
Title: Trust Officer
<PAGE>
EXHIBIT 4.4
TRUST AGREEMENT
OF
DOMINION RESOURCES CAPITAL TRUST I
THIS TRUST AGREEMENT is made as of October 31, 1997 (this "Trust
Agreement"), by and among Dominion Resources, Inc., a Virginia corporation, as
depositor (the "Depositor"), and Chase Manhattan Bank Delaware, a Delaware
banking corporation, (the "Trustee"). The Depositor and the Trustee hereby
agree as follows:
1. The trust created hereby shall be known as "Dominion Resources Capital
Trust I" (the "Trust"), in which name the Trustee or the Depositor, to the
extent provided herein, may conduct the business of the Trust, make and execute
contracts, and sue and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets over to the
Trust the sum of ten dollars ($10.00). Such amount shall constitute the initial
trust estate. It is the intention of the parties hereto that the Trust created
hereby constitute a business trust under Chapter 38 of Title 12 of the Delaware
Code, 12 Del. C. (S) 3801, et seq. (the "Business Trust Act"), and that this
document constitute the governing instrument of the Trust. The Trustee is hereby
authorized and directed to execute and file a certificate of trust with the
Delaware Secretary of State in accordance with the provisions of the Business
Trust Act.
3. The Depositor and the Trustee will enter into an amended and restated
Trust Agreement or Declaration satisfactory to each such party to provide for
the contemplated operation of the Trust created hereby and the issuance of the
Capital Securities and the Common Securities referred to therein. Prior to the
execution and delivery of such amended and restated Trust Agreement or
Declaration, the Trustee shall not have any duty or obligation hereunder or with
respect of the trust estate, except as otherwise required by applicable law or
as may be necessary to obtain prior to such execution and delivery any licenses,
consents or approvals required by applicable law or otherwise. Notwithstanding
the foregoing, the Trustee may take all actions deemed proper as are necessary
to effect the transactions contemplated herein.
4. The Depositor, as sponsor of the Trust, is hereby authorized, in its
discretion, (i) to prepare one or more offering memoranda in preliminary and
final form relating to the offering and sale of Capital Securities of the Trust
in a transaction exempt from the registration requirements of the Securities Act
of 1933, as amended (the "1933 Act"), and such other forms or filings as may be
required by the 1933 Act, the Securities Exchange Act of 1934, as amended, or
the Trust Indenture Act of 1939, as amended, in each case relating to the
Capital Securities of
<PAGE>
the Trust; (ii) to file and execute on behalf of the Trust, such applications,
reports, surety bonds, irrevocable consents, appointments of attorney for
service of process and other papers and documents that shall be necessary or
desirable to register or establish the exemption from registration of the
Capital Securities of the Trust under the securities or "Blue Sky" laws of such
jurisdictions as the Depositor, on behalf of the Trust, may deem necessary or
desirable; (iii) to execute and file an application, and all other applications,
statements, certificates, agreements and other instruments that shall be
necessary or desirable to cause the Capital Securities to be listed on the
Private Offerings, Resales and Trading through Automated Linkages ("PORTAL")
Market, with PORTAL; (iv) to execute and deliver letters or documents to, or
instruments for filing with, a depository relating to the Capital Securities of
the Trust; (v) to execute, deliver and perform on behalf of the Trust one or
more purchase agreements, registration rights agreements, dealer manager
agreements, escrow agreements and other similar or related agreements providing
for or relating to the sale of the Capital Securities of the Trust, and (vi) to
execute on behalf of the Trust any and all documents, papers and instruments as
may be desirable in connection with any of the foregoing.
In the event that any filing referred to in this Section 4 is required by
the rules and regulations of the Commission, PORTAL or state securities or Blue
Sky laws to be executed on behalf of the Trust by the Trustee, the Trustee, or
any trustee of the Trust appointed pursuant to Section 6 hereof, in its capacity
as trustee of the Trust, is hereby authorized and directed to join in any such
filing and to execute on behalf of the Trust any and all of the foregoing, it
being understood that any such Trustee of the Trust, in its capacity as trustee
of the Trust, shall not be required to join in any such filing or execute on
behalf of the Trust any such document unless required by the rules and
regulations of the Commission, PORTAL or state securities or Blue Sky laws.
5. This Trust Agreement may be executed in one or more counterparts.
6. The number of trustees of the Trust initially shall be one and
thereafter the number of trustees of the Trust shall be such number as shall be
fixed from time to time by a written instrument signed by the Depositor which
may increase or decrease the number of trustees of the Trust; provided, however,
that to the extent required by the Business Trust Act, one trustee of the Trust
shall either be a natural person who is a resident of the State of Delaware or,
if not a natural person, an entity which has its principal place of business in
the State of Delaware. Subject to the foregoing, the Depositor is entitled to
appoint or remove without cause any trustee of the Trust at any time. Any
2
<PAGE>
trustee of the Trust may resign upon thirty days' prior notice to the Depositor.
7. This Trust Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware (without regard to conflict of laws
principles).
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed as of the day and year first above written.
DOMINION RESOURCES, INC.,
as Depositor
By: /s/ G. Scott Hetzer
-----------------------------
Name: G. Scott Hetzer
Title: Vice President
CHASE MANHATTAN BANK DELAWARE,
not in its individual capacity but
solely as trustee of the Trust
By: /s/ Denis Kelly
-----------------------------
Name: Denis Kelly
Title: Trust Officer
3
<PAGE>
EXHIBIT 4.5
AMENDED AND RESTATED
TRUST AGREEMENT
OF
DOMINION RESOURCES CAPITAL TRUST I
AMONG
DOMINION RESOURCES, INC., AS DEPOSITOR,
THE CHASE MANHATTAN BANK,
AS PROPERTY TRUSTEE,
CHASE MANHATTAN BANK DELAWARE,
AS DELAWARE TRUSTEE,
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
AND
THE SEVERAL HOLDERS, AS HEREIN DEFINED
DATED AS OF DECEMBER 8, 1997
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
ARTICLE I
DEFINED TERMS
1.1 DEFINITIONS....................................................... 2
ARTICLE II
CONTINUATION OF THE TRUST
2.1 NAME.............................................................. 15
2.2 OFFICE OF THE DELAWARE TRUSTEE;
PRINCIPAL PLACE OF BUSINESS....................................... 15
2.3 INITIAL CONTRIBUTION OF TRUST PROPERTY;
ORGANIZATIONAL EXPENSES........................................... 16
2.4 ISSUANCE OF THE CAPITAL SECURITIES................................ 16
2.5 ISSUANCE OF THE COMMON SECURITIES;
SUBSCRIPTION AND PURCHASE OF DEBENTURES........................... 17
2.6 DECLARATION OF TRUST.............................................. 17
2.7 AUTHORIZATION TO ENTER INTO CERTAIN TRANSACTIONS.................. 18
2.8 ASSETS OF TRUST................................................... 23
2.9 TITLE TO TRUST PROPERTY........................................... 23
ARTICLE III
PAYMENT ACCOUNT
3.1 PAYMENT ACCOUNT................................................... 23
ARTICLE IV
DISTRIBUTIONS; REDEMPTION
4.1 DISTRIBUTIONS..................................................... 23
4.2 REDEMPTION........................................................ 24
4.3 SUBORDINATION OF COMMON SECURITIES................................ 28
4.4 PAYMENT PROCEDURES................................................ 29
4.5 TAX RETURNS AND REPORTS........................................... 29
4.6 PAYMENT OF TAXES, DUTIES, ETC. OF THE TRUST....................... 29
4.7 REDUCTION FOR PAYMENTS UNDER INDENTURE
OR PURSUANT TO DIRECT ACTIONS..................................... 30
</TABLE>
<PAGE>
ARTICLE V
TRUST SECURITIES CERTIFICATES
<TABLE>
<S> <C>
5.1 INITIAL OWNERSHIP................................................. 30
5.2 THE TRUST SECURITIES CERTIFICATES; EXECUTION
AND DELIVERY THEREOF.............................................. 30
5.3 FORM OF TRUST SECURITIES CERTIFICATES............................. 31
5.4 REGISTRATION OF TRANSFER AND EXCHANGE
OF CAPITAL SECURITIES CERTIFICATES................................ 33
5.5 MUTILATED, DESTROYED, LOST OR STOLEN
TRUST SECURITIES CERTIFICATES..................................... 34
5.6 PERSONS DEEMED SECURITYHOLDERS.................................... 35
5.7 ACCESS TO LIST OF SECURITYHOLDERS' NAMES
AND ADDRESSES..................................................... 35
5.8 MAINTENANCE OF OFFICE OR AGENCY FOR TRANSFERS..................... 36
5.9 APPOINTMENT OF PAYING AGENT....................................... 36
5.10 OWNERSHIP OF COMMON SECURITIES BY DEPOSITOR;
RESALE OF CAPITAL SECURITIES...................................... 37
5.11 BOOK-ENTRY INTERESTS; TRANSFERS AMONG CERTIFICATES................ 37
5.12 NOTICES TO CLEARING AGENCY........................................ 41
5.13 PROCEDURES FOR ISSUANCE OF DEFINITIVE CAPITAL
SECURITIES CERTIFICATES........................................... 41
5.14 RIGHTS OF SECURITYHOLDERS......................................... 41
ARTICLE VI
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
6.1 LIMITATIONS ON VOTING RIGHTS...................................... 44
6.2 NOTICE OF MEETINGS................................................ 45
6.3 MEETINGS OF CAPITAL SECURITYHOLDERS............................... 45
6.4 VOTING RIGHTS..................................................... 46
6.5 PROXIES, ETC...................................................... 46
6.6 SECURITYHOLDER ACTION BY WRITTEN CONSENT.......................... 46
6.7 RECORD DATE FOR VOTING AND OTHER PURPOSES......................... 46
6.8 ACTS OF SECURITYHOLDERS........................................... 47
6.9 INSPECTION OF RECORDS............................................. 48
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
7.1 REPRESENTATIONS AND WARRANTIES OF THE BANK,
THE PROPERTY TRUSTEE AND THE DELAWARE TRUSTEE...................... 48
</TABLE>
ii
<PAGE>
ARTICLE VIII
THE TRUSTEES
<TABLE>
<S> <C>
8.1 CORPORATE PROPERTY TRUSTEE REQUIRED;
ELIGIBILITY OF TRUSTEES......................................... 49
8.2 CERTAIN DUTIES AND RESPONSIBILITIES............................. 50
8.3 CERTAIN NOTICES................................................. 52
8.4 CERTAIN RIGHTS OF PROPERTY TRUSTEE.............................. 52
8.5 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE
OF SECURITIES................................................... 54
8.6 MAY HOLD SECURITIES............................................. 55
8.7 COMPENSATION; INDEMNITY; FEES................................... 55
8.8 CONFLICTING INTERESTS........................................... 55
8.9 CO-TRUSTEES AND SEPARATE TRUSTEE................................ 56
8.10 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR............... 57
8.11 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.......................... 59
8.12 MERGER, CONVERSION, CONSOLIDATION OR
SUCCESSION TO BUSINESS.......................................... 60
8.13 PROPERTY TRUSTEE MAY FILE PROOFS OF CLAIMS...................... 60
8.14 REPORTS BY PROPERTY TRUSTEE..................................... 61
8.15 REPORTS TO THE PROPERTY TRUSTEE................................. 61
8.16 EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT................ 62
8.17 NUMBER OF TRUSTEES.............................................. 62
8.18 DELEGATION OF POWER............................................. 62
ARTICLE IX
TERMINATION, LIQUIDATION AND MERGER
9.1 TERMINATION UPON EXPIRATION DATE................................ 63
9.2 EARLY TERMINATION............................................... 63
9.3 TERMINATION..................................................... 64
9.4 LIQUIDATION..................................................... 64
9.5 MERGERS, CONSOLIDATIONS, AMALGAMATIONS OR
REPLACEMENTS OF THE TRUST....................................... 66
ARTICLE X
MISCELLANEOUS PROVISIONS
10.1 LIMITATION OF RIGHTS OF SECURITYHOLDERS
TO TERMINATE TRUST.............................................. 67
10.2 AMENDMENT....................................................... 67
10.3 SEPARABILITY.................................................... 68
10.4 GOVERNING LAW................................................... 69
10.5 PAYMENTS DUE ON NON-BUSINESS DAY................................ 69
</TABLE>
iii
<PAGE>
<TABLE>
<S> <C>
10.6 SUCCESSORS........................................................ 69
10.7 HEADINGS.......................................................... 69
10.8 REPORTS, NOTICES AND DEMANDS...................................... 69
10.9 FISCAL YEAR....................................................... 70
10.10 CERTAIN ACCOUNTING MATTERS........................................ 70
10.11 BANKING........................................................... 71
10.12 WITHHOLDING....................................................... 71
10.13 TRUST INDENTURE ACT; CONFLICT WITH TRUST
INDENTURE ACT..................................................... 71
10.14 ACCEPTANCE OF TERMS OF TRUST AGREEMENT,
GUARANTEE, REGISTRATION RIGHTS AGREEMENTS AND INDENTURE........... 72
10.15 COUNTERPARTS...................................................... 72
</TABLE>
iv
<PAGE>
EXHIBITS
- ---------
EXHIBIT A - Certificate of Trust
EXHIBIT B - Form of 144A Global Security
EXHIBIT C - Form of Regulation S Global Security
EXHIBIT D - Form of Definitive Capital Security Certificate
EXHIBIT E - Form of Common Security Certificate
EXHIBIT F - Form of Letter to be Delivered by Institutional Accredited
Investors
EXHIBIT G - Form of Transfer Certificate - 144A Global Security or
Institutional Accredited Investors Definitive to Regulation
S Global Security
EXHIBIT H - Form of Transfer Certificate - Regulation S Global Security
or Institutional Accredited Investors Definitive to 144A
Global Security
EXHIBIT I - Form of Private Placement Legend
EXHIBIT J - Form of Minimum Transfer Legend
v
<PAGE>
AMENDED AND RESTATED TRUST AGREEMENT
AMENDED AND RESTATED TRUST AGREEMENT, dated as of December 8, 1997, among
(i) Dominion Resources, Inc., a Virginia corporation (including any successors
or assigns, the "Depositor"), (ii) The Chase Manhattan Bank, a New York banking
corporation, as property trustee, (in such capacity, the "Property Trustee" and,
in its separate corporate capacity and not in its capacity as Property Trustee,
the "Bank"), (iii) Chase Manhattan Bank Delaware, a banking corporation that
maintains its principal place of business in Delaware, as Delaware trustee (the
"Delaware Trustee"), (iv) Edgar M. Roach, Jr., an individual and G. Scott
Hetzer, an individual, each of whose address is c/o Dominion Resources, Inc.,
901 E. Byrd Street, Richmond, Virginia 23219 (each an "Administrative Trustee"
and collectively the "Administrative Trustees") and (v) the several Holders, as
hereinafter defined.
WITNESSETH
WHEREAS, the Depositor and the Delaware Trustee have heretofore duly
declared and created a business trust pursuant to the Delaware Business Trust
Act by entering into that certain Trust Agreement, dated as of October 31, 1997
(the "Original Trust Agreement"), and by the execution and filing by the
Delaware Trustee with the Secretary of State of the State of Delaware of a
Certificate of Trust, filed on October 31, 1997, attached as Exhibit A;
WHEREAS, the Depositor and the Delaware Trustee desire to amend and restate
the Original Trust Agreement in its entirety as set forth herein to provide for,
among other things, (i) the issuance of the Common Securities by the Trust to
the Depositor, (ii) the issuance and sale of the Capital Securities by the Trust
pursuant to the Purchase Agreement, (iii) the acquisition by the Trust from the
Depositor of all of the right, title and interest in the Debentures and (iv) the
consummation of the Exchange Offer (as defined below) and/or the registration of
the Private Capital Securities pursuant to a Shelf Registration;
WHEREAS, upon the effectiveness of the exchange registration statement
referred to in the Capital Securities Exchange and Registration Rights
Agreement, this Trust Agreement shall be subject to, and shall be governed by,
the provisions of the Trust Indenture Act that are required to be part of and to
govern indentures qualified under the Trust Indenture Act;
NOW THEREFORE, in consideration of the agreements and obligations set forth
herein and for other good and valuable consideration, the sufficiency of which
is hereby acknowledged, each party, for the benefit of the other parties and for
the benefit of the Securityholders, hereby
<PAGE>
amends and restates the Original Trust Agreement in its entirety and agrees as
follows:
ARTICLE I
DEFINED TERMS
1.1 DEFINITIONS.
For all purposes of this Trust Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(b) all other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may be,
of this Trust Agreement; and
(d) the words "herein," "hereof," "hereto" and "hereunder" and other
words of similar import refer to this Trust Agreement as a whole and not to any
particular Article, Section or other subdivision.
"Act" has the meaning specified in Section 6.8.
"Additional Distributions" means, with respect to Trust Securities of a
given Liquidation Amount and for a given period, the amount of Additional
Interest (as defined in the Indenture) paid by the Depositor on a Like Amount of
Debentures for such period.
"Additional Tax Sums" has the meaning specified in Section 4.8 of the
Indenture.
"Adjusted Treasury Rate" has the meaning set forth in the Indenture.
"Administrative Trustee" means a Person satisfying the eligibility
requirements set forth in Section 8.1(b) and initially means each of Edgar M.
Roach, Jr. and G. Scott Hetzer, in such Person's capacity as Administrative
Trustee of the Trust heretofore created and continued hereunder and not in such
Person's individual capacity, or such Administrative Trustee's successor in
interest in such capacity, or any successor trustee appointed as herein
provided.
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"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Bank" has the meaning specified in the preamble to this Trust Agreement.
"Bankruptcy Event" means, with respect to any Person:
(a) the entry of a decree or order by a court having jurisdiction in
the premises judging such Person a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjudication or
composition of or in respect of such Person under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar law, or appointing
a receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of such Person or of any substantial part of its property or ordering
the winding up or liquidation of its affairs, and the continuance of any such
decree or order unstayed and in effect for a period of 60 consecutive days; or
(b) the institution by such Person of proceedings to be adjudicated
bankrupt or insolvent, or the consent by it to the institution of bankruptcy or
insolvency proceedings against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar law, or the
consent by it to the filing of any such petition or to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of such Person or of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors, or the admission by
it in writing of its inability to pay its debts generally as they become due and
its willingness to be adjudicated a bankrupt, or the taking of corporate action
by such Person in furtherance of any such action.
"Business Day" means any day which is not a Saturday or Sunday or a day on
which banking institutions in The City of New York are authorized or required by
law or executive order to close or a day on which the Corporate Trust Office of
the Property Trustee or the Debenture Trustee is closed for business.
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"Capital Securities Certificate" means a certificate in global or
definitive form evidencing ownership of Capital Securities, which certificate
shall initially be substantially in the form attached as Exhibit B, Exhibit C or
Exhibit D, or Exchange Capital Securities.
"Capital Securities Exchange and Registration Rights Agreement" means an
agreement dated as of December 8, 1997 among the Depositor, the Trust and the
Initial Purchasers named in Schedule I to the Purchase Agreement.
"Capital Security" means a preferred undivided beneficial interest in the
assets of the Trust, having a Liquidation Amount of $1,000 and having the rights
provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution as provided herein. Unless the
context otherwise requires, the term "Capital Securities" shall include any
Exchange Capital Securities to be issued and exchanged for any Private Capital
Securities.
"Cedel" means Cedel Bank, societe anonyme.
"Certificate Depository Agreement" means the agreement among the Trust, the
Property Trustee and DTC, as the initial Clearing Agency, dated as of the
Closing Date, relating to the Capital Securities Certificates, as the same may
be amended and supplemented from time to time.
"Clearing Agency" means an organization registered as a "clearing agency"
pursuant to Section 17A of the Exchange Act, or any successor provision thereto
or as may be amended from time to time. DTC will be the initial Clearing
Agency.
"Clearing Agency Participant" means a broker, dealer, bank, other financial
institution or other Person for whom from time to time a Clearing Agency effects
book-entry transfers and pledges of securities deposited with the Clearing
Agency.
"Closing Date" means December 8, 1997, which is the date of execution and
delivery of this Trust Agreement, or such other date as may be designated the
Closing Date pursuant to the Purchase Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, or, if at any time after the
execution of this Trust Agreement such Commission is not existing or performing
the duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
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"Common Security" means an undivided beneficial interest in the assets of
the Trust, having a Liquidation Amount of $1,000 and having the rights provided
therefor in this Trust Agreement, including the right to receive Distributions
and a Liquidation Distribution as provided herein.
"Common Securities Certificate" means a certificate evidencing ownership of
Common Securities, substantially in the form attached as Exhibit E.
"Corporate Trust Office" means (i) when used with respect to the Property
Trustee, the principal corporate trust office of the Property Trustee and (ii)
when used with respect to the Debenture Trustee, the principal corporate trust
office of the Debenture Trustee.
"Debenture Event of Default" means an "Event of Default" as defined in the
Indenture.
"Debenture Exchange and Registration Rights Agreement" means an agreement
dated as of December 8, 1997 among the Depositor, the Trust and the Initial
Purchasers named in Schedule I to the Purchase Agreement.
"Debenture Prepayment Date" means, with respect to any Debentures to be
redeemed under the Indenture, the date fixed for redemption under the Indenture.
"Debenture Tax Event" means a "Tax Event" as defined in the Indenture.
"Debenture Trustee" means The Chase Manhattan Bank, in its capacity as
debenture trustee under the Indenture, and any successor thereto under the
Indenture.
"Debentures" means the Depositor's 7.83% Junior Subordinated Deferrable
Interest Debentures due December 1, 2027, issued pursuant to the Indenture.
Unless the context otherwise requires, the term "Debentures" includes any
Exchange Debentures to be issued and exchanged for any Private Debentures in the
Exchange Offer.
"Definitive Capital Securities Certificates" means Capital Securities
Certificates issued in definitive, fully registered form.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. C. (S)(S) 3801, et seq., as it may be amended from time to time.
"Delaware Trustee" means the corporation identified as the "Delaware
Trustee" in the preamble to this Trust Agreement solely in its capacity
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as Delaware Trustee of the Trust heretofore created and continued hereunder and
not in its individual capacity, or its successor in interest in such capacity,
or any Delaware Trustee appointed as herein provided.
"Depositor" has the meaning specified in the preamble to this
Trust Agreement.
"Direct Action" has the meaning specified in Section 5.14(c).
"Distribution Date" has the meaning specified in Section 4.1(a).
"Distributions" means amounts payable in respect of the Trust Securities as
provided in Section 4.1 and shall include, if applicable, Additional
Distributions, Special Distributions and Additional Tax Sums, if any.
"DTC" means The Depository Trust Company or its successor.
"Early Termination Event" has the meaning specified in Section 9.2.
"Effective Time" has the meaning set forth in the Capital Securities
Exchange and Registration Rights Agreement.
"Euroclear" means Morgan Guaranty Trust Company of New York in its capacity
as operator of the Euroclear System.
"Event of Default" means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) the occurrence of a Debenture Event of Default; or
(b) default by the Property Trustee in the payment of any
Distribution when it becomes due and payable, and continuation of such default
for a period of 30 days; or
(c) default by the Property Trustee in the payment of any Redemption
Price of any Trust Security when it becomes due and payable; or
(d) default in the performance, or breach, in any material respect,
of any covenant or warranty of the Trustees in this Trust Agreement (other than
a covenant or warranty a default in the performance of which or breach of which
is addressed in clause (b) or (c) above) and
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continuation of such default or breach for a period of 90 days after there has
been given, by registered or certified mail, to the defaulting Trustee or
Trustees by the Holders of at least 25% in aggregate Liquidation Amount of the
Outstanding Capital Securities a written notice specifying such default or
breach and requiring it to be remedied and stating that such notice is a "Notice
of Default" hereunder; or
(e) the occurrence of a Bankruptcy Event with respect to the Property
Trustee and the failure to appoint a successor Property Trustee within 60 days
thereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Capital Securities" means Capital Securities representing
preferred undivided beneficial interests in the assets of the Trust, issued by
the Trust in an exchange offer for the Private Capital Securities, such exchange
offer being registered under the Securities Act, all pursuant to the Capital
Securities Exchange and Registration Rights Agreement; provided, however, that
the aggregate Liquidation Amount of the Private Capital Securities and the
Exchange Capital Securities at any one time outstanding shall not exceed
$250,000,000.
"Exchange Debentures" means a new series of junior subordinated deferrable
interest debentures issued by the Depositor in a mandatory exchange offer for
the Private Debentures, such exchange offer being registered under the
Securities Act, all pursuant to the Debenture Exchange and Registration Rights
Agreement.
"Exchange Guarantee" means the Exchange Guarantee extended by the Depositor
for the benefit of the Holders of Capital Securities pursuant to the Exchange
Guarantee Agreement, and registered under the Securities Act pursuant to the
Guarantee Exchange and Registration Rights Agreement.
"Exchange Guarantee Agreement" means the Guarantee Agreement to be entered
into by the Depositor, as Guarantor, and The Chase Manhattan Bank, New York, as
Guarantee Trustee, pursuant to the Guarantee Exchange and Registration Rights
Agreement.
"Exchange Offer" has the meaning set forth in the Registration Rights
Agreements.
"Expense Agreement" means the Agreement as to Expenses and Liabilities
dated as of December 8, 1997, between the Depositor and the Trust, as amended
from time to time.
"Expiration Date" has the meaning specified in Section 9.1.
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"Global Capital Securities Certificate" means any Capital Securities
Certificate in the form of a 144A Global Security, a Regulation S Global
Security and, if applicable, any Exchange Capital Security (or any Private
Capital Security registered pursuant to a Shelf Registration pursuant to Section
2(b) of the Capital Securities Exchange and Registration Rights Agreement) in
either case, which is represented in global form and deposited with the Clearing
Agency or the Property Trustee as custodian for the Clearing Agency.
"Guarantee" means the Private Guarantee with respect to the Private Capital
Securities and the Exchange Guarantee with respect to the Exchange Capital
Securities.
"Guarantee Agreement" means the Capital Securities Guarantee Agreement
dated as of December 8, 1997 between the Depositor, as Guarantor, and The Chase
Manhattan Bank, as Guarantee Trustee.
"Guarantee Exchange and Registration Rights Agreement" means an agreement
dated as of December 8, 1997 among the Depositor, the Trust and the Initial
Purchasers named in Schedule I to the Purchase Agreement.
"Holder" means a Person in whose name a Trust Security or Trust Securities
is registered in the Securities Register; any such Person shall be a beneficial
owner within the meaning of the Delaware Business Trust Act.
"Indemnified Person" has the meaning specified in Section 8.7(c).
"Indenture" means the Indenture, dated as of December 1, 1997, between the
Depositor and the Debenture Trustee, as trustee, as supplemented by the First
Supplemental Indenture dated as of December 1, 1997, and as further amended or
supplemented from time to time.
"Initial Optional Redemption Date" has the meaning set forth in Section
4.2(a).
"Initial Purchasers" means the Purchasers named in Schedule I to the
Purchase Agreement.
"Institutional Accredited Investor" means an institutional investor that is
an "accredited investor" within the meaning of Rule 501(a)(1), (2), (3) or (7)
under the Securities Act.
"Investment Company Event" means the receipt by the Depositor and the Trust
of an Opinion of Counsel, from counsel who shall not be an officer or employee
of the Depositor or its Affiliates (an "Investment Company Event Opinion"), to
the effect that, as a result of the
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occurrence of a change in law or regulation or a change in interpretation or
application of law or regulation by any legislative body, court, governmental
agency or regulatory authority (a "Change in 1940 Act Law"), the Trust is or
will be considered an "investment company" that is required to be registered
under the 1940 Act, which Change in 1940 Act Law becomes effective on or after
the date of original issuance of the Capital Securities under this Trust
Agreement.
"Investment Company Event Opinion" has the meaning set forth in the
definition of an Investment Company Event.
"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed of
trust, adverse ownership interest, hypothecation, assignment, security interest
or preference, priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.
"Like Amount" means (a) with respect to a redemption of Trust Securities,
Trust Securities having a Liquidation Amount equal to the principal amount of
Debentures to be contemporaneously redeemed in accordance with the Indenture,
the proceeds of which will be used to pay the Redemption Price of such Trust
Securities, and (b) with respect to a distribution of Debentures to Holders of
Trust Securities in connection with a dissolution, termination or liquidation of
the Trust, Debentures having a principal amount equal to the Liquidation Amount
of the Trust Securities of the Holder to whom such Debentures are distributed.
"Liquidation Amount" means the stated amount of $1,000 per Trust Security.
"Liquidation Date" means the date on which Debentures are to be
distributed to Holders of Trust Securities in connection with a dissolution,
termination and liquidation of the Trust pursuant to Section 9.4(a).
"Liquidation Distribution" has the meaning specified in Section 9.4(d).
"Maturity" has the meaning set forth in the Indenture.
"Maturity Redemption Price" means an amount equal to the principal of and
accrued interest on the Debentures as of the Maturity thereof.
"Minimum Transfer Legend" means the legend substantially in the form
attached as Exhibit J.
"1940 Act" means the Investment Company Act of 1940, as amended.
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"90 Day Period" has the meaning set forth in Section 4.2(a).
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, any Vice Chairman of the Board, the Chief Executive Officer, the
President or any Vice President of the Depositor (whether or not designated by a
number or a word or words added before or after the title Vice President) and by
the Treasurer, an Assistant Treasurer, the Controller, the Corporate Secretary
or an Assistant Corporate Secretary of the Depositor and delivered to the
appropriate Trustee. Any Officers' Certificate delivered with respect to
compliance with a condition or covenant provided for in this Trust Agreement
shall include:
(a) a statement that each officer signing the Officers' Certificate
has read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers' Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"144A Global Security" has the meaning specified in Section 5.3(b).
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Trust, the Property Trustee or the Depositor (including counsel who is
an employee of the Depositor) and who shall be reasonably satisfactory to the
Property Trustee.
"Optional Prepayment Price" has the meaning set forth in the Indenture.
"Optional Redemption Price" has the meaning set forth in Section 4.2(a).
"Original Trust Agreement" has the meaning specified in the recitals to
this Trust Agreement.
"Outstanding", when used with respect to Trust Securities, means, as of the
date of determination, all Trust Securities theretofore executed and delivered
under this Trust Agreement, except:
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(a) Trust Securities theretofore cancelled by the Securities
Registrar or delivered to the Securities Registrar for cancellation;
(b) Trust Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Property Trustee or any
Paying Agent for the Holders of such Trust Securities; provided, however, that,
if such Trust Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Trust Agreement; and
(c) Trust Securities which have been paid or in exchange for or in
lieu of which other Trust Securities have been executed and delivered pursuant
to Sections 5.4, 5.5, 5.11 and 5.13;
provided, however, that in determining whether the Holders of the requisite
Liquidation Amount of the Outstanding Capital Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, Capital
Securities owned by the Depositor, any Trustee or any Affiliate of the Depositor
or any Trustee shall be disregarded and deemed not to be Outstanding, except
that (a) in determining whether any Trustee shall be protected in relying upon
any such request, demand, authorization, direction, notice, consent or waiver,
only Capital Securities that such Trustee actually knows to be so owned shall be
so disregarded and (b) the foregoing shall not apply at any time when all of the
outstanding Capital Securities are owned by the Depositor, one or more of the
Trustees and/or any such Affiliate. Capital Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Administrative Trustee the pledgee's right so to act
with respect to such Capital Securities and that the pledgee is not the
Depositor or any Affiliate of the Depositor.
"Owner" means each Person who is the beneficial owner of a Global Capital
Securities Certificate as reflected in the records of the Clearing Agency or, if
a Clearing Agency Participant is not the Owner, then as reflected in the records
of a Person maintaining an account with such Clearing Agency (directly or
indirectly, in accordance with the rules of such Clearing Agency).
"Paying Agent" means any paying agent or co-paying agent appointed pursuant
to Section 5.9 and shall initially be the Bank.
"Payment Account" means a segregated non-interest-bearing corporate trust
account maintained by the Property Trustee with the Bank in its corporate trust
department for the benefit of the Securityholders in which all amounts paid in
respect of the Debentures will be held and from
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which the Property Trustee, through the Paying Agent, shall make payments to the
Securityholders in accordance with Sections 4.1 and 4.2.
"Person" means any individual, corporation, estate, partnership, joint
venture, association, joint stock company, limited liability company, trust,
unincorporated association, or government or any agency or political subdivision
thereof, or any other entity of whatever nature.
"PORTAL Market" means the Private Offerings, Resales and Trading through
Automated Linkages Market operated by the National Association of Securities
Dealers, Inc. (or any successor thereto).
"Private Capital Securities" means the $250,000,000 aggregate Liquidation
Amount of the Trust's 7.83% Capital Securities issued pursuant to this Agreement
on the Closing Date.
"Private Debentures" means the $257,732,000 aggregate principal amount of
the Depositor's 7.83% Junior Subordinated Deferrable Interest Debentures due
December 1, 2027, issued pursuant to the Indenture on the Closing Date.
"Private Guarantee" means the Guarantee extended by the Depositor for the
benefit of the Holders of Private Capital Securities pursuant to the Guarantee
Agreement.
"Private Placement Legend" means the legend substantially in the form
attached as Exhibit I.
"Property Trustee" means the commercial bank or trust company identified as
the "Property Trustee" in the preamble to this Trust Agreement solely in its
capacity as Property Trustee of the Trust heretofore created and continued
hereunder and not in its individual capacity, or its successor in interest in
such capacity, or any successor Property Trustee appointed as herein provided.
"Purchase Agreement" means the Purchase Agreement, dated as of December 3,
1997, among the Trust, the Depositor and the Purchasers named in Schedule I
thereto.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Quotation Agent" has the meaning set forth in the Indenture.
"Redemption Date" means, with respect to any Trust Security to be redeemed,
the date fixed for such redemption by or pursuant to this Trust Agreement;
provided that each Debenture Prepayment Date and the stated
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maturity of the Debentures shall be a Redemption Date for a Like Amount of Trust
Securities.
"Redemption Price" has the meaning set forth in Section 4.2(a).
"Registration Rights Agreements" means the Capital Securities Exchange and
Registration Rights Agreement, the Debenture Exchange and Registration Rights
Agreement and the Guarantee Exchange and Registration Rights Agreement,
collectively.
"Regulation S" means Regulation S under the Securities Act or any successor
provision thereto and as may be amended from time to time.
"Regulation S Global Security" has the meaning specified in Section 5.3(c).
"Related Party" means, with respect to the Depositor, any direct or
indirect wholly-owned subsidiary of the Depositor or any other Person that owns,
directly or indirectly, 100% of the outstanding voting securities of the
Depositor.
"Relevant Trustee" has the meaning specified in Section 8.10.
"Restricted Period" means the period of 40 consecutive days beginning on
and including the later of (x) the day on which the offering of the Capital
Securities commences or (y) the Closing Date.
"Rule 144" means Rule 144 as promulgated under the Securities Act, or any
successor provision thereto and as may be amended from time to time.
"Rule 144A" means Rule 144A as promulgated under the Securities Act, or any
successor provision thereto and as may be amended from time to time.
"Rule 144(k)" means Rule 144(k) as promulgated under the Securities Act, or
any successor provision thereto and as may be amended from time to time.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 5.4.
"Securityholder" means a Person in whose name a Trust Security or Trust
Securities is or are registered in the Securities Register; any
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such Person shall be a beneficial owner within the meaning of the Delaware
Business Trust Act.
"Shelf Registration" has the meaning set forth in the Registration Rights
Agreements.
"Special Distributions" has the meaning specified in the Capital Securities
Exchange and Registration Rights Agreement.
"Special Event" has the meaning set forth in Section 4.2(a)(ii).
"Special Event Redemption Price" means an amount in cash equal to the
greater of (i) 100% of the Liquidation Amount of the Trust Securities and (ii)
the sum, as determined by a Quotation Agent, of the present values of the
principal amount and premium payable as part of the Optional Redemption Price on
the Initial Optional Redemption Date together with the present values of
scheduled payments of interest thereon from the prepayment date to and including
the Initial Optional Redemption Date, in each case, discounted to the redemption
date on a semi-annual basis (consisting of a 360-day year of twelve 30-day
months) at the Adjusted Treasury Rate, plus, in each case, accumulated and
unpaid Distributions thereon, if any, to but excluding the date of such
redemption.
"Special Interest" has the meaning specified in the Capital Securities
Exchange and Registration Rights Agreement.
"Stated Maturity" has the meaning set forth in the Indenture.
"Successor Securities" has the meaning specified in Section 9.5.
"Tax Event" means the receipt by the Depositor and the Trust of an Opinion
of Counsel, from counsel who shall not be an officer or employee of the
Depositor or its Affiliates, requested by the Depositor (a "Tax Event Opinion")
to the effect that, as a result of any amendment to, or change (including any
announced prospective change) in, the laws or any regulations thereunder of the
United States or any political subdivision or taxing authority thereof or
therein, or as a result of any official administrative written decision or
pronouncement or judicial decision interpreting or applying such laws or
regulations, which amendment or change is effective or which pronouncement or
decision is made on or after December 8, 1997, there is more than an
insubstantial risk that (i) the Trust is, or will be within 90 days of the date
of such Tax Event Opinion, subject to United States federal income tax with
respect to income received or accrued on the Debentures, (ii) interest payable
by the Depositor on the Debentures is not, or within 90 days of the date of such
Tax Event Opinion, will not be, deductible by the Depositor, in
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whole or in part, for United States federal income tax purposes, or (iii) the
Trust is, or will be within 90 days of the date of such Tax Event Opinion,
subject to more than a de minimis amount of other taxes, duties or other
governmental charges.
"Tax Event Opinion" has the meaning specified in the definition of a Tax
Event.
"Transfer Restriction Termination Date" means with respect to all or part
of the Capital Securities, (i) the first day on which such Capital Securities
(other than Capital Securities acquired by the Trust or the Depositor or any
Affiliate thereof) may be sold pursuant to Rule 144(k), or (ii) the day on which
such Capital Securities are sold pursuant to a Shelf Registration.
"Trust" means the Delaware business trust created under the Original Trust
Agreement and continued hereby and identified in Section 2.1.
"Trust Agreement" means this Amended and Restated Trust Agreement, as the
same may be modified, amended or supplemented in accordance with the applicable
provisions hereof, including (i) all exhibits hereto, and (ii) for all purposes
of this Trust Agreement and any such modification, amendment or supplement, the
provisions of the Trust Indenture Act that are deemed to be a part of and govern
this Trust Agreement and any such modification, amendment or supplement,
respectively.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"Trust Property" means (a) the Debentures, (b) any cash on deposit in, or
owing to, the Payment Account and (c) all proceeds and rights in respect of the
foregoing and any other property and assets for the time being held or deemed to
be held by the Property Trustee pursuant to the trusts of this Trust Agreement.
"Trust Security" means any one of the Common Securities or the Capital
Securities. The Trust Securities represent undivided beneficial interests in
the Trust Property.
"Trust Securities Certificate" means any one of the Common Securities
Certificates or the Capital Securities Certificates.
"Trustees" means, collectively, the Property Trustee, the Delaware Trustee
and the Administrative Trustees.
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ARTICLE II
CONTINUATION OF THE TRUST
2.1 NAME. The Trust continued hereby shall be known as "Dominion
Resources Capital Trust I" as such name may be modified from time to time by the
Administrative Trustees following written notice to the Securityholders and the
other Trustees, in which name the Trustees may conduct the business of the
Trust, make and execute contracts and other instruments on behalf of the Trust
and sue and be sued.
2.2 OFFICE OF THE DELAWARE TRUSTEE; PRINCIPAL PLACE OF BUSINESS. The
name and address of the Delaware Trustee in the State of Delaware is Chase
Manhattan Bank Delaware, 1201 Market Street, Wilmington, Delaware 19801,
Attention: Corporate Trustee Administration, or such other address in the State
of Delaware as the Delaware Trustee may designate by written notice to the
Securityholders and the Depositor. The principal executive office of the Trust
is c/o Dominion Resources, Inc., 901 E. Byrd Street, Richmond, Virginia 23219,
Attention: Treasurer.
2.3 INITIAL CONTRIBUTION OF TRUST PROPERTY; ORGANIZATIONAL EXPENSES. The
Delaware Trustee acknowledges receipt in trust from the Depositor in connection
with the Original Trust Agreement of the sum of ten dollars ($10), which
constituted the initial Trust Property. The Depositor shall pay organizational
expenses of the Trust as they arise or shall, upon request of any Trustee,
promptly reimburse such Trustee for any such expenses paid by such Trustee. The
Depositor shall make no claim upon the Trust Property for the payment of such
expenses.
2.4 ISSUANCE OF THE CAPITAL SECURITIES.
The Trust shall be authorized to issue two classes of Capital Securities of
which at no time shall there be more than $250,000,000 in Liquidation Amount
outstanding. The two classes shall be designated as Private Capital Securities
and Exchange Capital Securities.
(a) The Depositor, on behalf of the Trust and pursuant to the Original
Trust Agreement, executed and delivered the Purchase Agreement.
Contemporaneously with the execution and delivery of this Trust Agreement, an
Administrative Trustee, on behalf of the Trust, shall execute in accordance with
Section 5.2 and deliver to the Initial Purchasers Capital Securities
Certificates representing Private Capital Securities, registered in the name of
a nominee of the initial Clearing Agency, in an aggregate amount of 250,000
Capital Securities having an aggregate Liquidation Amount of $250,000,000,
against payment by the Initial Purchasers of $250,000,000 (such amount including
accumulated
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distributions from December 8, 1997, if any), which amount shall be wired to the
Payment Account, or at the written direction of the Property Trustee, to the
Depositor solely for satisfying the purchase price of the Debentures. Any such
amount so directed to the Depositor shall be deemed for all purposes to be
received by the Trust prior to the payment to the Depositor.
(b) Contemporaneously with the exchange of Exchange Capital Securities
pursuant to the Capital Securities Exchange and Registration Rights Agreement
and the Exchange Offer, an Administrative Trustee, on behalf of the Trust, shall
execute in accordance with Section 5.2, and deliver in accordance with any then
applicable delivery instructions, Capital Securities Certificates in an
aggregate amount having an aggregate Liquidation Amount equal to the aggregate
Liquidation Amount of the Private Capital Securities then being exchanged.
2.5 ISSUANCE OF THE COMMON SECURITIES; SUBSCRIPTION AND PURCHASE OF
DEBENTURES. The Trust shall be authorized to issue one class of Common
Securities of which at no time shall there be more than 7,732 in Liquidation
Amount outstanding. Contemporaneously with the execution and delivery of this
Trust Agreement and of the Capital Securities Certificates referred to in
Section 2.4, an Administrative Trustee, on behalf of the Trust, shall execute in
accordance with Section 5.2 and deliver to the Depositor Common Securities
Certificates, registered in the name of the Depositor, in an aggregate amount of
7,732 Common Securities having an aggregate Liquidation Amount of $7,732,000
against payment by the Depositor of $7,732,000 (such amount including
accumulated distributions from December 8, 1997, if any) which amount shall be
wired to the Payment Account, or at the written direction of the Property
Trustee, to the Depositor solely for satisfying the purchase price of the
Debentures. Any such amount so directed to the Depositor shall be deemed for
all purposes to be received by the Trust prior to the payment to the Depositor.
Contemporaneously therewith, an Administrative Trustee, on behalf of the
Trust, shall subscribe for and purchase from the Depositor Private Debentures,
registered in the name of the Property Trustee and having an aggregate principal
amount equal to $257,732,000, and, in satisfaction of the purchase price for
such Debentures, the Property Trustee, on behalf of the Trust, shall deliver to
the Depositor the sum of $257,732,000 (such sum being the sum of the amounts
delivered to the Property Trustee pursuant to (i) the second sentence of Section
2.4 and (ii) the first sentence of this Section 2.5).
2.6 DECLARATION OF TRUST. The exclusive purposes and functions of the
Trust are (a) to issue and sell Trust Securities (including the Exchange Capital
Securities pursuant to the Exchange Offer and/or the
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Private Capital Securities pursuant to a Shelf Registration), (b) to use the
proceeds from the sale of Trust Securities to acquire the Private Debentures,
(c) to make Distributions to Holders, (d) to exchange the Private Debentures for
the Exchange Debentures pursuant to the Indenture and to issue Exchange Capital
Securities in exchange for the Capital Securities pursuant to the Exchange Offer
and (e) to engage in those activities necessary, advisable or incidental thereto
(such as registering the transfer of the Capital Securities). The Depositor
hereby appoints, and/or confirms the appointment pursuant to the Original Trust
Agreement of, the Property Trustee, the Delaware Trustee and the Administrative
Trustees as trustees of the Trust, to have all the rights, powers and duties to
the extent set forth herein, and the Property Trustee, the Delaware Trustee and
the Administrative Trustees hereby accept such appointment. The Property Trustee
hereby declares that it will hold the Trust Property in trust upon and subject
to the conditions set forth herein for the benefit of the Trust and the
Securityholders. The Administrative Trustees shall have all rights, powers and
duties set forth herein and in accordance with applicable law with respect to
accomplishing the purposes of the Trust. The Delaware Trustee shall not be
entitled to exercise any powers, nor shall the Delaware Trustee have any of the
duties and responsibilities, of the Property Trustee or the Administrative
Trustees set forth herein. The Delaware Trustee shall be one of the Trustees of
the Trust for the sole and limited purpose of fulfilling the requirements of
Section 3807 of the Delaware Business Trust Act and accepting service of process
on the Trust in the State of Delaware.
2.7 AUTHORIZATION TO ENTER INTO CERTAIN TRANSACTIONS.
(a) The Trustees shall conduct the affairs of the Trust in accordance
with the terms of this Trust Agreement. Subject to the limitations set forth in
paragraph (b) of this Section, and in accordance with the following provisions
(i) and (ii), the Trustees shall have the authority to enter into all
transactions and agreements determined by the Trustees to be necessary or
appropriate in exercising the authority, express or implied, otherwise granted
to the Trustees under this Trust Agreement, and to perform all acts in
furtherance thereof, including without limitation, the following:
(i) As among the Trustees, each Administrative Trustee
shall have the power and authority to act on behalf of the Trust with
respect to the following matters:
(A) the issuance and sale of the Trust Securities
including any agreements necessary with respect to such
issuance and sale;
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(B) to cause the Trust to enter into, and to
execute, deliver and perform on behalf of the Trust, the
Registration Rights Agreements, the Expense Agreement and
the Certificate Depository Agreement and such other
agreements as may be necessary or desirable in connection
with the purposes and function of the Trust;
(C) assisting in the registration of the Exchange
Offer and the Exchange Capital Securities (or assisting in
the registration of the Private Capital Securities pursuant
to a Shelf Registration) under the Securities Act and under
the state securities or blue sky laws, and the qualification
of this Trust Agreement as a trust indenture under the Trust
Indenture Act, all in accordance with the Capital Securities
Exchange and Registration Rights Agreement;
(D) subject to applicable principles of federal
securities laws, assisting in any listing of the Exchange
Capital Securities upon such securities exchange or
exchanges as shall be determined by the Depositor and the
registration of the Exchange Capital Securities under the
Exchange Act and the preparation and filing of all periodic
and other reports and other documents pursuant to the
foregoing;
(E) the sending of notices (other than notices of
default) and other information regarding the Trust
Securities and the Debentures to the Securityholders in
accordance with this Trust Agreement;
(F) the appointment of a Paying Agent and Securities
Registrar in accordance with this Trust Agreement;
(G) executing the Trust Securities in accordance
with this Trust Agreement;
(H) to the extent provided in this Trust Agreement,
the winding up of the affairs of and liquidation of the
Trust and the preparation, execution and filing of the
certificate of
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cancellation with the Secretary of State of the State of
Delaware;
(I) unless otherwise determined by the Depositor,
the Property Trustee or the Administrative Trustees, or as
otherwise required by the Delaware Business Trust Act or the
Trust Indenture Act, to execute on behalf of the Trust
(either acting alone or together with any or all of the
Administrative Trustees) any documents that the
Administrative Trustees have the power to execute pursuant
to this Trust Agreement; and
(J) the taking of any action incidental to the
foregoing as the Administrative Trustees may from time to
time determine is necessary or advisable to give effect to
the terms of this Trust Agreement for the benefit of the
Securityholders (without consideration of the effect of any
such action on any particular Securityholder).
(ii) As among the Trustees, the Property Trustee shall have
the power, duty and authority to act on behalf of the Trust with
respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Debentures;
(C) the collection of interest, principal and any
other payments made in respect of the Debentures in the
Payment Account;
(D) the distribution through the Paying Agent of
amounts owed to the Securityholders in respect of the Trust
Securities;
(E) the exercise of all of the rights, powers and
privileges of a holder of the Debentures in accordance with
the terms of this Trust Agreement;
(F) the sending of notices of default and other
information regarding the Trust Securities and the
Debentures to the Securityholders in accordance with this
Trust Agreement;
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(G) the distribution of the Trust Property in
accordance with the terms of this Trust Agreement;
(H) to the extent provided in this Trust Agreement,
the winding up of the affairs of and liquidation of the
Trust and the execution of the certificate of cancellation
with the Secretary of State of the State of Delaware;
(I) to exchange the Private Guarantee for the
Exchange Guarantee pursuant to the Guarantee Exchange and
Registration Rights Agreement in the exchange in connection
with the Exchange Offer;
(J) to exchange the Private Debentures for the
Exchange Debentures in an exchange in connection with the
Exchange Offer pursuant to the Debenture Exchange and
Registration Rights Agreement;
(K) to exchange the Private Capital Securities for
the Exchange Capital Securities in an exchange in connection
with the Exchange Offer pursuant to the Capital Securities
and Exchange Rights Agreement;
(L) after an Event of Default (other than under
paragraph (b), (c), (d) or (e) of the definition of such
term if such Event of Default is by or with respect to the
Property Trustee), the taking of any action incidental to
the foregoing as the Property Trustee may from time to time
determine is necessary or advisable to give effect to the
terms of this Trust Agreement and protect and conserve the
Trust Property for the benefit of the Securityholders
(without consideration of the effect of any such action on
any particular Securityholder) and, within 10 Business Days
after the occurrence of any Event of Default actually known
to an officer of the Property Trustee assigned to its
Corporate Trust Office, to give notice thereof to the
Securityholders; and
(M) except as otherwise provided in this Section
2.7(a)(ii), or in the Trust Indenture Act (regardless of
whether applicable or not), the
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Property Trustee shall have none of the duties, liabilities,
powers or the authority of the Administrative Trustees set
forth in Section 2.7(a)(i).
(b) So long as this Trust Agreement remains in effect, the Trust (or
the Trustees acting on behalf of the Trust) shall not undertake any business,
activities or transaction except as expressly provided herein or contemplated
hereby. In particular, the Trustees on behalf of the Trust shall not (i)
acquire any investments or engage in any activities not authorized by this Trust
Agreement, (ii) sell, assign, transfer, exchange, mortgage, pledge, set-off or
otherwise dispose of any of the Trust Property or interests therein, including
to Securityholders, except as expressly provided herein, (iii) take any action
that would cause the Trust to fail or cease to qualify as a "grantor trust" for
United States federal income tax purposes, (iv) incur any indebtedness for
borrowed money or issue any other debt or (v) take or consent to any action that
would result in the placement of a Lien on any of the Trust Property. The
Trustees shall defend all claims and demands of all Persons at any time claiming
any Lien on any of the Trust Property adverse to the interest of the Trust or
the Securityholders in their capacity as Securityholders.
(c) In connection with the issuance and sale of the Capital
Securities, the Depositor shall have the right and responsibility to assist the
Trust with respect to, or effect on behalf of the Trust, the following (and any
actions taken by the Depositor in furtherance of the following prior to the date
of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) negotiation of the terms of, and the execution and
delivery of, the Purchase Agreement providing for the sale of the
Capital Securities;
(ii) preparation of an application for designation of the
Private Capital Securities for trading in the PORTAL Market at the
time of issuance thereof;
(iii) the preparation of an offering memorandum and the
preparation and filing by the Trust with the Commission and the
execution on behalf of the Trust of a registration statement on the
appropriate form in relation to the Exchange Offer, including any
amendments thereto and/or a "shelf" registration statement to register
the Private Capital Securities, the Private Guarantee and the Private
Debentures, in each case in accordance with the provisions of the
Registration Rights Agreements;
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(iv) the determination of the states, if any, in which to
take appropriate action to qualify or register for sale all or part of
the Capital Securities and the Guarantee and the determination of any
and all such acts, other than actions which must be taken by or on
behalf of the Trust, and the advice to the Trustees of actions they
must take on behalf of the Trust, and the preparation for execution
and filing of any documents to be executed and filed by the Trust or
on behalf of the Trust, as the Depositor deems necessary or advisable
in order to comply with the applicable laws of any such state; and
(v) any other actions necessary or desirable to carry out
any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary but subject to
Section 10.2, the Administrative Trustees are authorized and directed to conduct
the affairs of the Trust and to operate the Trust so that the Trust will not be
deemed to be an "investment company" required to be registered under the 1940
Act or fail or cease to be classified as a grantor trust for United States
federal income tax purposes and so that the Debentures will be treated as
indebtedness of the Depositor for United States federal income tax purposes. In
this connection, the Depositor and the Administrative Trustees are authorized to
take any action, not inconsistent with applicable law, the Certificate of Trust
or this Trust Agreement (including, without limitation, Section 10.2), that each
of the Depositor and any Administrative Trustee determines in its discretion to
be necessary or desirable for such purposes, as long as such action does not
adversely affect in any material respect the interests of the Holders of the
Capital Securities.
2.8 ASSETS OF TRUST. The assets of the Trust shall consist of the Trust
Property.
2.9 TITLE TO TRUST PROPERTY. Legal title to all Trust Property shall be
vested at all times in the Property Trustee (in its capacity as such) and shall
be held and administered by the Property Trustee for the benefit of the Trust
and the Securityholders in accordance with this Trust Agreement.
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ARTICLE III
PAYMENT ACCOUNT
3.1 PAYMENT ACCOUNT.
(a) On or prior to the Closing Date, the Property Trustee shall
establish the Payment Account. The Property Trustee and any agent of the
Property Trustee shall have exclusive control and sole right of withdrawal with
respect to the Payment Account for the purpose of making deposits in and
withdrawals from the Payment Account in accordance with this Trust Agreement.
All monies and other property deposited or held from time to time in the Payment
Account shall be held by the Property Trustee in the Payment Account for the
exclusive benefit of the Securityholders and for distribution as herein
provided, including (and subject to) any priority of payments provided for
herein.
(b) The Property Trustee shall deposit in the Payment Account,
promptly upon receipt, all payments of principal of or interest on, and any
other payments or proceeds with respect to, the Debentures. Amounts held in the
Payment Account shall not be invested by the Property Trustee pending
distribution thereof.
ARTICLE IV
DISTRIBUTIONS; REDEMPTION
4.1 DISTRIBUTIONS.
(a) Distributions will be made on the Trust Securities at the rate per
annum and on the dates that payments of interest are made on the Debentures.
Distributions on the Trust Securities shall be cumulative, and will accumulate
whether or not there are funds of the Trust available for the payment of
Distributions. Distributions shall accumulate from December 8, 1997 and, except
in the event (and to the extent) that the Depositor exercises its right to defer
the payment of interest on the Debentures pursuant to the Indenture, shall be
payable semiannually in arrears on June 1 and December 1 of each year,
commencing on June 1, 1998. If payments on the Debentures are deferred by the
Depositor, the Trust shall, in like manner, defer payment of Distributions on
the Trust Securities, and Additional Distributions (compounded semi-annually)
shall accumulate thereon for so long as the payment of interest on the
Debentures is so deferred. If any date on which a Distribution is otherwise
payable on the Trust Securities is not a Business Day, then the payment of such
Distribution shall be made on the next succeeding day that is a Business Day
(and without any interest or other payment in respect of any such delay), in
each case, with the same force and effect
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as if made on such date (each date on which Distributions are payable in
accordance with this Section 4.1(a), a "Distribution Date").
(b) Assuming payments of interest on the Debentures are made when due
and assuming compliance by the Depositor and the Trust with their obligations
under the Capital Securities Exchange and Registration Rights Agreement (and
before giving effect to any Additional Distributions, Special Distributions and
Additional Tax Sums, if applicable), Distributions on the Trust Securities shall
be payable at a rate of 7.83% per annum of the Liquidation Amount of the Trust
Securities. The amount of Distributions payable for any full period shall be
computed on the basis of a 360-day year of twelve 30-day months. The amount of
Distributions for any partial period shall be computed on the basis of the
number of days elapsed in a 360-day year of twelve 30-day months. The amount of
Distributions payable for any period shall include the Additional Distributions,
Special Distributions and Additional Tax Sums, if any.
(c) Distributions on the Trust Securities shall be made by the
Property Trustee from the Payment Account and shall be payable on each
Distribution Date only to the extent that the Trust has funds then on hand and
available in the Payment Account for the payment of such Distributions.
(d) Distributions on the Trust Securities with respect to a
Distribution Date shall be payable to the Holders thereof as they appear on the
Securities Register for the Trust Securities on the relevant record date, which
shall be the 15th day of the month immediately prior to the month in which the
relevant Distribution Date occurs.
4.2 REDEMPTION.
(a) Upon the repayment of the Debentures at the Maturity thereof or
prepayment thereof (in whole or in part) prior thereto in accordance with the
terms thereof, the proceeds from such repayment or prepayment shall be
contemporaneously applied by the Property Trustee (subject to the Property
Trustee having received notice no later than 45 days prior to such repayment or
prepayment) toward the mandatory redemption of a Like Amount of the Trust
Securities at a redemption price equal to (i) in the case of the repayment of
the Debentures on the Stated Maturity, the Maturity Redemption Price, (ii) in
the case of the optional prepayment of the Debentures upon the occurrence and
continuation of a Special Event, the Special Event Redemption Price and (iii) in
the case of the optional prepayment of the Debentures other than as a result of
the occurrence and continuance of a Special Event, the Optional Redemption
Price. The Maturity Redemption Price, the Special Event Redemption Price and
the Optional Redemption Price are referred to
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collectively as the "Redemption Price." Holders will be given not less than 20
nor more than 60 days notice of such redemption.
(i) The Depositor shall have the right (in accordance with and
subject to the conditions of the Indenture) to elect to prepay the
Debentures in whole or in part at any time on or after December 1, 2007
(the "Initial Optional Redemption Date"), upon not less than 20 days and
not more than 60 days notice, at the Optional Prepayment Price and,
contemporaneously with such prepayment, a Like Amount of the Trust
Securities shall be redeemed at the Optional Redemption Price on a pro rata
basis. "Optional Redemption Price" shall mean a price equal to the
percentage of the Liquidation Amount of Trust Securities to be redeemed
plus accumulated and unpaid Distributions thereon, if any, to the
applicable date of such redemption if redeemed during the 12 month period
beginning on December 1 of the years indicated below:
YEAR PERCENTAGE
---- ----------
2007 103.915%
2008 103.524%
2009 103.132%
2010 102.741%
2011 102.349%
2012 101.958%
2013 101.566%
2014 101.174%
2015 100.783%
2016 100.391%
2017 and thereafter 100.000%
(ii) If at any time a Tax Event or an Investment Company Event
(each a "Special Event") occurs, the Depositor shall have the right (in
accordance with and subject to the conditions set forth in the Indenture)
upon not less than 20 nor more than 60 days notice, to prepay the
Debentures in whole, but not in part, within the 90 days following the
occurrence of such Special Event (the "90 Day Period"), and,
contemporaneously with such redemption, the Property Trustee shall cause a
Like Amount of the Securities to be redeemed by the Trust (A) at any time
prior to the Initial Option Redemption Date, at the Special Event
Redemption Price and (B) thereafter, at the Optional Redemption Price, in
either case, on a pro rata basis with the proceeds from such prepayment of
Debentures.
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(b) Notice of redemption shall be given by the Property Trustee by
first-class mail, postage prepaid, mailed not less than 20 nor more than 60 days
prior to the Redemption Date to each Holder of Trust Securities to be redeemed,
at such Holder's address appearing in the Security Register. All notices of
redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price, or if the Redemption Price cannot be
calculated prior to the time the notice of redemption is required to be
sent, the manner of calculation thereof;
(iii) the CUSIP number;
(iv) if less than all the Outstanding Trust Securities are to be
redeemed, the identification and the total Liquidation Amount of the
particular Trust Securities to be redeemed; and
(v) that on the Redemption Date the Redemption Price will
become due and payable upon each such Trust Security to be redeemed and
that Distributions thereon will cease to accumulate on and after said date.
(c) The Trust Securities redeemed on each Redemption Date shall be
redeemed at the applicable Redemption Price with the proceeds from the
contemporaneous prepayment or repayment redemption of Debentures. Redemptions
of the Trust Securities shall be made and the Redemption Price shall be payable
on each Redemption Date only to the extent that the Trust has funds then legally
available in the Payment Account for the payment of such Redemption Price.
(d) If the Property Trustee gives a notice of redemption in respect
of any Capital Securities, then, by 11:00 a.m., New York City time, on the
Redemption Date, the Depositor shall deposit sufficient funds with the Property
Trustee to pay the Redemption Price. If such deposit has been made, then, by
2:00 p.m., New York City time, on the Redemption Date, subject to Section
4.2(c), the Property Trustee will, with respect to Capital Securities evidenced
by one or more Global Capital Securities Certificates, irrevocably deposit with
the Clearing Agency for such Capital Securities funds sufficient to pay the
applicable Redemption Price and will give such Clearing Agency irrevocable
instructions and authority to pay the Redemption Price to the Holders thereof.
With respect to Capital Securities evidenced by one or more Definitive Capital
Securities Certificates, the Property Trustee, subject
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to Section 4.2(c), will irrevocably deposit with the Paying Agent funds
sufficient to pay the applicable Redemption Price and will give the Paying Agent
irrevocable instructions and authority to pay the Redemption Price with respect
to such Capital Securities to the Holders thereof upon surrender of their
Definitive Capital Securities Certificates. Notwithstanding the foregoing,
Distributions payable on or prior to the Redemption Date for any Trust
Securities called for redemption shall be payable to the Holders of such Trust
Securities as they appear on the Securities Register for the Trust Securities on
the relevant record dates for the related Distribution Dates. If notice of
redemption shall have been given and funds deposited as required, then upon the
date of such deposit, all rights of Securityholders holding Trust Securities so
called for redemption will cease, except the right of such Securityholders to
receive the Redemption Price and any Distribution payable on or prior to the
Redemption Date, but without interest, and such Trust Securities will cease to
be outstanding. In the event that any date on which any Redemption Price is
payable is not a Business Day, then payment of the Redemption Price payable on
such date will be made on the next succeeding day that is a Business Day (and
without any interest or other payment in respect of any such delay), in each
case, with the same force and effect as if made on such date. In the event that
payment of the Redemption Price in respect of any Trust Securities called for
redemption is improperly withheld or refused and not paid either by the Trust or
by the Depositor pursuant to the Guarantee, Distributions on such Trust
Securities will continue to accumulate, at the then applicable rate, from the
Redemption Date originally established by the Trust for such Trust Securities to
the date such Redemption Price is actually paid, in which case the actual
payment date will be the date fixed for redemption for purposes of calculating
the Redemption Price.
(e) Payment of the Redemption Price on the Trust Securities shall be
made by the Property Trustee to the Holders thereof as they appear on the
Securities Register for the Trust Securities on a date to be established as the
record date for the distribution by the Administrative Trustees, which date
shall be not more than 45 days nor less than 15 days prior to the relevant
Redemption Date.
(f) Subject to Section 4.3(a), if less than all the Outstanding Trust
Securities are to be redeemed on a Redemption Date, then the aggregate
Liquidation Amount of Trust Securities to be redeemed shall be allocated on a
pro rata basis (based on Liquidation Amounts) among the Common Securities and
the Capital Securities. The particular Capital Securities to be redeemed shall
be selected not less than 20 nor more than 60 days prior to the Redemption Date
by the Property Trustee from the Outstanding Capital Securities not previously
called for redemption, by such method (including, without limitation, on a pro
rata basis or by lot) as the Property Trustee shall deem fair and appropriate
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and which may provide for the selection for redemption of portions (equal to
$1,000 or an integral multiple of $1,000 in excess thereof) of the Liquidation
Amount of Capital Securities of a denomination larger than $1,000; provided,
however, that redemption must be pro rata on the basis of the Outstanding
Capital Securities held by each Holder unless the Property Trustee, advised by
Opinion of Counsel, determines that non-pro rata redemption will not cause the
Trust to fail or cease to be classified as a grantor trust for United States
federal income tax purposes or, if the Trust might fail or cease to be
classified as a grantor trust, will not cause the Trust to be classified as an
association taxable as a corporation for United States federal income tax
purposes. In any such proration the Property Trustee may make such adjustments
so that any Capital Security to be redeemed shall, after such redemption, be in
an authorized denomination, subject to Section 5.4(b). The Property Trustee
shall promptly notify the Securities Registrar in writing of the Capital
Securities selected for redemption and, in the case of any Capital Securities
selected for partial redemption, the Liquidation Amount thereof to be redeemed.
For all purposes of this Trust Agreement, unless the context otherwise requires,
all provisions relating to the redemption of Capital Securities shall relate, in
the case of any Capital Securities redeemed or to be redeemed only in part, to
the portion of the Liquidation Amount of Capital Securities that has been or is
to be redeemed.
4.3 SUBORDINATION OF COMMON SECURITIES.
(a) Payment of Distributions on, and the Redemption Price of, the
Trust Securities, as applicable, shall be made, subject to Section 4.2(f), pro
rata among the Common Securities and the Capital Securities based on the
Liquidation Amount of the Trust Securities; provided, however, that if on any
Distribution Date or Redemption Date any Event of Default resulting from a
Debenture Event of Default shall have occurred and be continuing, no payment of
any Distribution on, or the Redemption Price of, any Common Security, and no
other payment on account of the redemption, liquidation or other acquisition of
Common Securities, shall be made unless payment in full in cash of all
accumulated and unpaid Distributions on all Outstanding Capital Securities for
all Distribution periods terminating on or prior thereto, or in the case of
payment of the Redemption Price the full amount of such Redemption Price on all
Outstanding Capital Securities, shall have been made or provided for, and all
funds immediately available to the Property Trustee shall first be applied to
the payment in full in cash of all Distributions on, or the Redemption Price of,
Capital Securities then due and payable.
(b) In the case of the occurrence of any Event of Default resulting
from any Debenture Event of Default, the Holder of Common Securities will be
deemed to have waived any right to act with respect
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to any such Event of Default under this Trust Agreement until the effect of all
such Events of Default with respect to the Capital Securities have been cured,
waived or otherwise eliminated. Until any such Event of Default under this Trust
Agreement with respect to the Capital Securities has been so cured, waived or
otherwise eliminated, the Property Trustee shall act solely on behalf of the
Holders of the Capital Securities and not the Holder of the Common Securities,
and only the Holders of the Capital Securities will have the right to direct the
Property Trustee to act on their behalf. If any such Event of Default is waived
by the holders of the Capital Securities, such waiver will also constitute a
waiver with respect to the holders of Common Securities for all purposes,
without any further act, vote or consent.
4.4 PAYMENT PROCEDURES. Payments of Distributions in respect of the
Capital Securities shall be made by check mailed to the address of the Person
entitled thereto as such address shall appear on the Securities Register or, if
the Capital Securities are held by a Clearing Agency, such Distributions shall
be made in immediately available funds to the Clearing Agency, which shall
credit the relevant Persons' accounts at such Clearing Agency on the applicable
Distribution Dates. Payments in respect of the Common Securities shall be made
in such manner as shall be mutually agreed between the Property Trustee and the
Common Securityholder.
4.5 TAX RETURNS AND REPORTS. The Administrative Trustees shall prepare
(or cause to be prepared) and file, at the Depositor's expense, all United
States federal, State and local tax and information returns and reports required
to be filed by or in respect of the Trust. In this regard, the Administrative
Trustees shall (a) prepare and file (or cause to be prepared and filed) the
appropriate Internal Revenue Service Form required to be filed in respect of the
Trust in each taxable year of the Trust and (b) prepare and furnish (or cause to
be prepared and furnished) to each Securityholder the appropriate Internal
Revenue Service form required to be provided on such form. The Administrative
Trustees shall provide the Depositor and the Property Trustee with a copy of all
such returns and reports promptly after such filing or furnishing. The Trustees
shall comply with United States federal withholding and backup withholding tax
laws and information reporting requirements with respect to any payments to
Securityholders under the Trust Securities.
4.6 PAYMENT OF TAXES, DUTIES, ETC. OF THE TRUST. Upon receipt under the
Debentures of Additional Tax Sums and the written direction of any of the
Administrative Trustees, the Property Trustee shall promptly pay, solely out of
monies on deposit pursuant to this Trust Agreement, any taxes, duties or
governmental charges of whatsoever nature (other than withholding taxes) imposed
on the Trust by the United States or any other taxing authority.
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4.7 REDUCTION FOR PAYMENTS UNDER INDENTURE OR PURSUANT TO DIRECT ACTIONS.
Any amount payable hereunder to any Holder of Capital Securities shall be
reduced by the amount of any corresponding payment such Holder (or an Owner with
respect to the Holder's Capital Securities) has directly received pursuant to
Section 6.5 of the Indenture or Section 5.14 of this Trust Agreement.
Notwithstanding any such payments, the Depositor shall remain obligated to pay
the principal of or interest on the Debentures and the Depositor shall be
subrogated to the rights of the Holder (and Owner) of such Capital Securities
with respect to payments on the Capital Securities to the extent of any payments
made by the Depositor to such Holder (and Owner) pursuant to either of such
Sections.
ARTICLE V
TRUST SECURITIES CERTIFICATES
5.1 INITIAL OWNERSHIP. Upon the creation of the Trust and the
contribution by the Depositor referred to Section 2.3 and until the issuance of
the Trust Securities, and at any time during which no Trust Securities are
outstanding, the Depositor shall be the sole beneficial owner of the Trust.
5.2 THE TRUST SECURITIES CERTIFICATES; EXECUTION AND DELIVERY THEREOF.
The Capital Securities Certificates shall be issued in denominations of $1,000
Liquidation Amount and integral multiples of $1,000 in excess thereof (subject
to Section 5.4(b)), and the Common Securities Certificates shall be issued in
denominations of $1,000 Liquidation Amount and integral multiples of $1,000 in
excess thereof. The Trust Securities Certificates shall be executed on behalf
of the Trust by manual or facsimile signature of at least one Administrative
Trustee. Typographical and other minor errors or defects in any reproduction of
any such signature shall not affect the validity of any such Trust Security
Certificate. Trust Securities Certificates bearing the manual or facsimile
signatures of individuals who were, at the time when such signatures shall have
been affixed, authorized to sign on behalf of the Trust, shall be validly issued
and entitled to the benefits of this Trust Agreement, notwithstanding that such
individuals or any of them shall have ceased to be so authorized prior to the
delivery of such Trust Securities Certificates or did not hold such offices at
the date of delivery of such Trust Securities Certificates. A transferee of a
Trust Securities Certificate shall become a Securityholder, and shall be
entitled to the rights and subject to the obligations of a Securityholder
hereunder, upon due registration of such Trust Securities Certificate in such
transferee's name pursuant to Sections 5.4, 5.11 and 5.13.
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At the Closing Date, the Administrative Trustees, or any of them, shall
cause Trust Securities Certificates, in an aggregate Liquidation Amount as
provided in Sections 2.4 and 2.5, to be executed on behalf of the Trust,
authenticated and delivered to or upon the written order of the Depositor,
signed by its Chairman of the Board, any Vice Chairman of the Board, its
President, any Vice President, its Treasurer or any Assistant Treasurer or its
Controller, without further corporate action by the Depositor, in authorized
denominations. The Trust Securities Certificates shall not be valid until
authenticated by the manual signature of an authorized officer of the Property
Trustee, the signature of whom shall be conclusive evidence that the Trust
Securities Certificates have been authenticated under this Trust Agreement.
Upon a written order of the Trust signed by one Administrative Trustee, the
Property Trustee shall authenticate the Trust Securities Certificates for
original issue. The Property trustee may appoint an authenticating agent
acceptable to the Trust to authenticate the Trust Securities Certificates. An
authenticating agent may authenticate the Trust Securities Certificates whenever
the Property Trustee may do so. Each reference to authentication by the
Property Trustee includes authentication by such agent. An authenticating agent
has the same rights as the Property Trustee to deal with the Depositor or an
Affiliate thereof.
5.3 FORM OF TRUST SECURITIES CERTIFICATES.
(a) A single Common Securities Certificate representing the Common
Securities shall be issued to the Depositor in the form of a definitive Common
Securities Certificate.
(b) Capital Securities offered and sold in reliance on Rule 144A shall
be issued initially in the form of one or more permanent global Capital
Securities, substantially in the form of Exhibit B (a "144A Global Security")
deposited with the Clearing Agency or the Property Trustee as custodian for the
Clearing Agency. Transfers of beneficial interests in the 144A Global Security
will be subject to the restrictions on transfer contained in the Private
Placement Legend and the Minimum Transfer Legend. Transfers of beneficial
interests in the 144A Global Security will be made in accordance with the
standing instructions and procedures of the Clearing Agency.
(c) Capital Securities offered and sold in offshore transactions in
reliance on Regulation S shall be issued initially in the form of one or more
permanent global Capital Securities, substantially in the form of Exhibit C (a
"Regulation S Global Security") deposited with the Clearing Agency or the
Property Trustee as custodian for the Clearing Agency. Prior to the expiration
of the Restricted Period, interests in the Regulation S Global Security may only
be held by
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Clearing Agency Participants in the name of a nominee of Euroclear and Cedel and
transfers of beneficial interests will be subject to the restrictions on
transfer contained in the Private Placement Legend and the Minimum Transfer
Legend. After the expiration of the Restricted Period, transfers of beneficial
interests in the Regulation S Global Security will not be subject to any
restrictions other than the restrictions contained in the Minimum Transfer
Legend. After the expiration of the Restricted Period, beneficial interests in
the Regulation S Global Security may be held by Clearing Agency Participants
other than in the name of a nominee of Euroclear and Cedel. Transfers of
beneficial interests in the Regulation S Global Security will be made in
accordance with the standing instructions and procedures of the Clearing Agency
and, prior to the expiration of the Restricted Period, Euroclear and Cedel.
(d) Capital Securities offered and sold to Institutional Accredited
Investors in reliance on Regulation D under the Securities Act shall be issued
initially in the form of one or more Definitive Capital Securities Certificates,
substantially in the form of Exhibit D, upon receipt by the Property Trustee of
a written certificate in the form of Exhibit F (and/or such other certificates,
legal opinions or other information as the Depositor may reasonably request to
confirm that such transfer is exempt from the registration of the Securities
Act). Transfers of Definitive Capital Securities Certificates will be subject
to the Private Placement Legend, the Minimum Transfer Legend and the
requirements contained in Section 5.11(d)(1) or 5.11(d)(2). Any such Capital
Securities which are subsequently registered pursuant to a Shelf Registration
may continue to be held in definitive form, or may be exchanged for beneficial
interests in a Global Capital Securities Certificate.
(e) All Trust Securities shall be dated the date of their
authentication.
(f) Exchange Capital Securities shall be issued in global form (which
form shall be substantially similar to Exhibit C hereto except that it shall
bear only the Minimum Transfer Legend) deposited with the Property Trustee as
custodian for the Clearing Agency or in such other form as the Administrative
Trustees may direct and will bear only the Minimum Transfer Legend.
(g) The Private Placement Legend shall be removed upon the request of
any Holder after the expiration of (i) with respect to Capital Securities
initially resold in reliance on Regulation S, the Restricted Period or (ii) with
respect to Capital Securities initially resold to Institutional Accredited
Investors or Qualified Institutional Buyers, the holding period applicable to
sales of the Capital Securities under Rule
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144(k) under the Securities Act or, in any case, such earlier time as a transfer
of such Capital Securities is made pursuant to an effective registration
statement under the Securities Act.
5.4 REGISTRATION OF TRANSFER AND EXCHANGE OF CAPITAL SECURITIES
CERTIFICATES.
(a) (i) The Depositor shall keep or cause to be kept, at the office
or agency maintained pursuant to Section 5.8, a register for the purpose of
registering Trust Securities Certificates and registering transfers and
exchanges of Capital Securities Certificates (the "Securities Register") in
which the registrar designated by the Depositor (the "Securities Registrar"),
subject to such reasonable regulations as it may prescribe, shall provide for
the registration of Capital Securities Certificates and Common Securities
Certificates and registration of transfers and exchanges of Capital Securities
Certificates, subject to Section 5.4(b), Section 5.10, Section 5.11 and as may
otherwise be provided herein. The Bank shall be the initial Securities
Registrar. The Securities Registrar shall not be required to register the
transfer or exchange of any Capital Securities (x) during a period beginning at
the opening of business 15 days before the day of the mailing of a notice of
redemption of Capital Securities and ending at the close of business on the day
of such mailing or (y) that have been selected for redemption in whole or in
part, except the unredeemed portion of any Capital Security redeemed in part.
(ii) Upon surrender for registration of transfer of any Capital
Securities Certificate at the office or agency maintained pursuant to
Section 5.8 and subject to compliance with Section 5.4(b) and Section 5.11,
the Administrative Trustees or any one of them shall execute and deliver
and the Property Trustee shall authenticate, in the name of the designated
transferee or transferees, one or more new Capital Securities Certificates
in authorized denominations of a like aggregate Liquidation Amount dated
the date of such authentication. Subject to Section 5.11, at the option of
a Holder, Capital Securities Certificates may be exchanged for other
Capital Securities Certificates in authorized denominations of the same
class and of a like aggregate Liquidation Amount upon surrender of the
Capital Securities Certificates to be exchanged at the office or agency
maintained pursuant to Section 5.8.
(iii) Every Capital Securities Certificate presented or
surrendered for registration of transfer or exchange shall be accompanied
by a written instrument of transfer in form satisfactory to an
Administrative Trustee and
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the Securities Registrar duly executed by the Holder or his attorney duly
authorized in writing. Each Capital Securities Certificate surrendered for
registration of transfer or exchange shall be canceled and subsequently
disposed of by the Securities Registrar in accordance with such Person's
customary practice; provided that no exchanges of Private Capital
Securities for Exchange Capital Securities shall occur until a registration
statement shall have been declared effective by the Commission and that any
Private Capital Securities that are exchanged for Exchange Capital
Securities shall be canceled by the Property Trustee.
(iv) No service charge shall be made for any registration of
transfer or exchange of Capital Securities Certificates, but the Securities
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any transfer or
exchange of Capital Securities Certificates.
(v) All Trust Securities shall be dated the date of their
authentication.
(b) The Capital Securities (which includes both the Private Capital
Securities and the Exchange Capital Securities) will be issued, and may be
transferred, only in blocks having a Liquidation Amount of not less than
$100,000 (100 Capital Securities). Any transfer, sale or other disposition of
Capital Securities in a block having a Liquidation Amount of less than $100,000
shall be deemed to be void and of no legal effect whatsoever. Any such
transferee shall be deemed not to be the Owner or Holder of such Capital
Securities for any purpose, including but not limited to the receipt of
Distributions on such Capital Securities, and such transferee shall be deemed to
have no interest whatsoever in such Capital Securities. All Capital Securities
(including the Exchange Capital Securities) will bear the Minimum Transfer
Legend.
5.5 MUTILATED, DESTROYED, LOST OR STOLEN TRUST SECURITIES CERTIFICATES.
If (a) any mutilated Trust Securities Certificate shall be surrendered to the
Securities Registrar, or if the Securities Registrar shall receive evidence to
its satisfaction of the destruction, loss or theft of any Trust Securities
Certificate and (b) there shall be delivered to the Securities Registrar, the
Property Trustee and the Administrative Trustees such security or indemnity as
may be required by them to save each of them harmless, then in the absence of
notice that such Trust Securities Certificate shall have been acquired by a bona
fide purchaser, the Administrative Trustees, or any one of them, on behalf of
the Trust shall execute and make available for delivery and the Property Trustee
shall authenticate, in exchange for or in lieu of any such
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mutilated, destroyed, lost or stolen Trust Securities Certificate, a new Trust
Securities Certificate of like class, tenor and denomination. In connection with
the issuance of any new Trust Securities Certificate under this Section, the
Administrative Trustees or the Securities Registrar may require the payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection therewith. Any duplicate Trust Securities Certificate issued
pursuant to this Section shall constitute conclusive evidence of an undivided
beneficial interest in the Trust Property, as if originally issued, whether or
not the lost, stolen or destroyed Trust Securities Certificate shall be found at
any time. The provisions of this Section 5.5 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement of mutilated, destroyed, lost or stolen Trust Securities.
5.6 PERSONS DEEMED SECURITYHOLDERS. The Trustees or the Securities
Registrar shall treat the Person in whose name any Trust Securities Certificate
shall be registered in the Securities Register as the owner of such Trust
Securities Certificate for the purpose of receiving Distributions and for all
other purposes whatsoever (subject to the record date provisions hereof), and
neither the Trustees nor the Securities Registrar shall be bound by any notice
to the contrary.
5.7 ACCESS TO LIST OF SECURITYHOLDERS' NAMES AND ADDRESSES. At any time
when the Property Trustee is not also acting as the Securities Registrar, the
Depositor shall furnish or cause to be furnished to the Property Trustee not
more than 5 days after each record date for payment of Distributions, and at
such other time as the Property Trustee may request in writing within 30 days
after receipt by the Depositor of any such request, a list, in such form as the
Property Trustee may reasonably require containing all information in the
possession or control of the Depositor other than the Property Trustee, as to
the names and addresses of the Securityholders obtained (in the case of each
list other than the first list) since the date as of which the next previous
list was furnished; provided that the Depositor shall not be obligated to
provide such list of Securityholders at any time the list of Securityholders
does not differ from the most recent list of Securityholders given to the
Property Trustee by the Depositor. Any such list may be dated as of a date not
more than fifteen days prior to the time such information is furnished or caused
to be furnished, and need not include information received after such date. The
rights of Securityholders to communicate with other Securityholders with respect
to their rights under this Trust Agreement or under the Trust Securities, and
the corresponding obligations and rights of the Property Trustee, shall be as
provided in the Trust Indenture Act. Each Holder, by receiving and holding a
Trust Securities Certificate, and each Owner shall be deemed to have agreed not
to hold the Depositor, the Property Trustee or the Administrative
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Trustees accountable by reason of the disclosure of its name and address,
regardless of the source from which such information was derived.
5.8 MAINTENANCE OF OFFICE OR AGENCY FOR TRANSFERS. The Administrative
Trustees shall maintain an office or offices or agency or agencies where Capital
Securities Certificates may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Trustees in respect of the
Trust Securities Certificates may be served. The Administrative Trustees
initially designate The Chase Manhattan Bank, 450 West 33rd Street, New York,
New York 10001, Attn: Corporate Trustee Administration, as their office or
agency for such purposes. The Administrative Trustees shall give prompt written
notice to the Depositor and to the Securityholders of any change in the location
of the Securities Register or any such office or agency.
5.9 APPOINTMENT OF PAYING AGENT. The Paying Agent shall make
Distributions to Securityholders from the Payment Account and shall report the
amounts of such Distributions to the Property Trustee and the Administrative
Trustees. Any Paying Agent shall have the revocable power to withdraw funds
from the Payment Account for the purpose of making the Distributions referred to
above. The Administrative Trustees may revoke such power and remove the Paying
Agent if such Trustees determine in their sole discretion that the Paying Agent
shall have failed to perform its obligations under this Trust Agreement in any
material respect. The Paying Agent shall initially be the Bank, and any co-
paying agent chosen by the Bank, and acceptable to the Administrative Trustees
and the Depositor. Any Person acting as Paying Agent shall be permitted to
resign as Paying Agent upon 30 days' written notice to the Administrative
Trustees, the Property Trustee and the Depositor. In the event that the Bank
shall no longer be the Paying Agent or a successor Paying Agent shall resign or
its authority to act be revoked, the Administrative Trustees shall appoint a
successor that is acceptable to the Administrative Trustees and the Depositor to
act as Paying Agent (which shall be a bank or trust company). The Administrative
Trustees shall cause such successor Paying Agent or any additional Paying Agent
appointed by the Administrative Trustees to execute and deliver to the Trustees
an instrument in which such successor Paying Agent or additional Paying Agent
shall agree with the Trustees that as Paying Agent, such successor Paying Agent
or additional Paying Agent will hold all sums, if any, held by it for payment to
the Securityholders in a non-interest-bearing account in trust for the benefit
of the Securityholders entitled thereto until such sums shall be paid to such
Securityholders. The Paying Agent shall return all funds unclaimed after two
years to the Depositor and upon removal of a Paying Agent such Paying Agent
shall also return all funds in its possession to the Property Trustee. The
provisions of Sections 8.2, 8.4 and 8.6 herein shall apply to the Bank also in
its role as Paying Agent, for so long as the Bank shall act as Paying Agent
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and, to the extent applicable, to any other paying agent appointed hereunder.
Any reference in this Agreement to the Paying Agent shall include any co-paying
agent unless the context requires otherwise.
5.10 OWNERSHIP OF COMMON SECURITIES BY DEPOSITOR; RESALE OF CAPITAL
SECURITIES.
(a) At the Closing Date, the Depositor shall acquire the Common
Securities. Neither the Depositor nor any Related Party may transfer the Common
Securities other than (i) to the Depositor or a Related party or (ii) pursuant
to a transfer in connection with a consolidation or merger of the Depositor or
any conveyance, transfer or sale by the Depositor, permitted by and pursuant to
Article Eleven of the Indenture.
(b) The Depositor and Trust agree that, beginning from the original
issue date with respect to the Capital Securities through the time period
referred to in Rule 144(k) under the Securities Act, they will not, and will not
permit any of their "affiliates" (as defined under Rule 144 under the Securities
Act) to, resell any Capital Securities which constitute "restricted securities"
under Rule 144 except pursuant to an effective registration statement under the
Securities Act.
5.11 BOOK-ENTRY INTERESTS; TRANSFERS AMONG CERTIFICATES.
(a) Except as provided in Section 5.3(d), so long as the Capital
Securities are eligible for book-entry settlement in the Clearing Agency or
unless otherwise required by law, all Capital Securities that are so eligible
will be represented by one or more Global Capital Securities Certificates
deposited with the Clearing Agency or the Property Trustee as custodian for the
Clearing Agency, by, or on behalf of, the Trust. No Owner of a beneficial
interest in a Global Capital Securities Certificate will receive a Definitive
Capital Securities Certificate representing such Owner's beneficial interest in
the Capital Securities, except as provided in Section 5.11(f) below; provided,
however, that, with respect to any Private Capital Security in global form, the
Depositor shall request and the Trust shall issue a Definitive Capital
Securities Certificate upon any transfer of a beneficial interest in such
Private Capital Security to the Company or an Affiliate of the Company and no
Definitive Capital Securities Certificate, or portion thereof, in respect of
which the Company or an Affiliate of the Company held any beneficial interest
shall be resold, retransferred or included in any Global Capital Security until
such Private Capital Security is freely tradeable in accordance with Rule 144(k)
or pursuant to an effective registration statement under the Securities Act.
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(b) 144A Global Securities shall initially be registered in the name
of a nominee of the Clearing Agency and Regulation S Global Securities shall
initially be registered in the name of a nominee of the Clearing Agency for the
direct or indirect accounts of Euroclear and Cedel.
(c) Transfers of interests in Private Capital Securities between any
144A Global Security and any Regulation S Global Security will be made in
accordance with this Trust Agreement (including Section 5.11(d)(iii) and (iv),
as applicable) and in accordance with the standing instructions and procedures
of the Clearing Agency. The Property Trustee shall make appropriate
endorsements to reflect increases or decreases in the amount of such Global
Capital Securities.
(d) Unless and until the earlier of (i) the date upon which Private
Capital Securities are exchanged for Exchange Capital Securities in connection
with an effective registration statement pursuant to the Capital Securities
Exchange and Registration Rights Agreement or (ii) the Transfer Restriction
Termination Date:
(i) Definitive to Definitive Transfers. Any transfer of a
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Definitive Capital Securities Certificate shall be registered on the
Securities Register only upon receipt by the Property Trustee of such
Definitive Capital Securities Certificate accompanied by a duly completed
and executed assignment in the form attached to Exhibit D and, in the case
of a transfer to an Institutional Accredited Investor, upon receipt by the
Property Trustee of a written certificate in the form of Exhibit F (and/or
such other certificates, legal opinions or other information as the
Depositor may reasonably request to confirm that such transfer is exempt
from the registration of the Securities Act);
(ii) Definitive into a Global Capital Security. So long as
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Private Capital Securities are eligible for book-entry settlement with the
Clearing Agency or unless otherwise required by law, upon any transfer of a
Definitive Capital Securities Certificate to a QIB in accordance with Rule
144A or to a non-U.S. Person in accordance with Regulation S, and upon
receipt of the Definitive Capital Securities Certificate being so
transferred accompanied by (i) a duly completed and executed assignment in
the form attached to Exhibit D and (ii) (x) in the case of a transferee
taking delivery in the form of a beneficial interest in a 144A Global
Security, a written certificate in the form of Exhibit H or (y) in the case
of a transferee taking delivery in the form of a beneficial interest in a
Regulation S Global Security, a
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written certificate in the form of Exhibit G, the Property Trustee on
behalf of the Trust shall make an endorsement on any 144A Global Security
or any Regulation S Global Security, as the case may be, to reflect an
increase in such Global Capital Security and the Property Trustee, on
behalf of the Trust, shall cancel such Definitive Capital Securities
Certificate.
(iii) 144A Global Security into Regulation S Global Security.
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Any transfer in accordance with Rule 904 of Regulation S of a beneficial
interest in a 144A Global Security shall be reflected by an increase in the
Regulation S Global Security and a corresponding decrease in the 144A
Global Security only upon receipt by the Trustee of a written certificate
in the form of Exhibit G (or such other certifications, legal opinions or
other information as the Depositor may reasonably require to confirm that
such transfer is being made pursuant to Rule 904); and
(iv) Regulation S Global Security into 144A Global Security.
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Any transfer of a beneficial interest in a Regulation S Global Security to
a transferee that takes delivery in the form of a beneficial interest in
the 144A Global Security shall be reflected by an increase in the 144A
Global Security and a corresponding decrease in the Regulation S Global
Security and, prior to the expiration of the Restricted Period, only upon
receipt by the Property Trustee of a written certificate in the form of
Exhibit H (or such other certifications, legal opinions or other
information as the Depositor may reasonably require).
(e) Any Global Capital Security may be endorsed with or have
incorporated in the text thereof such legends or recitals or changes not
inconsistent with the provisions of this Trust Agreement as may be required by
the Clearing Agency, by any national securities exchange or by the National
Association of Securities Dealers, Inc. in order for the Private Capital
Securities to be tradeable on the PORTAL Market or as may be required for the
Private Capital Securities to be tradeable on any other market developed for
trading of securities pursuant to Rule 144A or required to comply with any
applicable law or any regulation thereunder or with the rules and regulations of
any securities exchange upon which the Capital Securities may be listed or
traded (subject to applicable principles of federal securities laws) or to
conform with any usage with respect thereto, or to indicate any special
limitations or restrictions to which any particular Capital Securities are
subject.
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(f) Notwithstanding any other provisions of this Trust Agreement
(other than the provisions set forth in this Section 5.11(f)), a Global Capital
Security may not be exchanged in whole or in part for Definitive Capital
Securities Certificates, and no transfer of a Global Capital Security may be
registered, in the name of any Person other than the Clearing Agency or a
nominee thereof unless (i) such Clearing Agency (A) has notified the Property
Trustee and the Depositor that it is unwilling or unable to continue as Clearing
Agency for such Global Capital Security or (B) has ceased to be a clearing
agency registered as such under the Exchange Act and no successor Clearing
Agency has been appointed by the Depositor within 90 days after its receipt of
such notice or its becoming aware of such cessation of registration, (ii) there
shall have occurred and be continuing an Event of Default, or any event which
after notice or lapse of time or both would be an Event of Default under the
Trust Agreement, with respect to such Capital Security or (iii) the Depositor in
its sole discretion instructs the Property Trustee to exchange such Global
Capital Security for Definitive Capital Securities Certificates.
(g) Unless and until Definitive Capital Securities Certificates have
been issued to Owners pursuant to Sections 5.11(f) and 5.13, the following
provisions of this Section 5.11(g) shall govern the rights of Owners:
(i) the Securities Registrar and the Trustees shall be entitled
to deal with the Clearing Agency for all purposes of this Trust Agreement
relating to the Global Capital Securities (including the payment of the
Liquidation Amount of and Distributions on the Capital Securities evidenced
by Global Capital Securities Certificates and the giving of instructions or
directions to Owners of Capital Securities evidenced by Global Capital
Securities) as the sole Holder of Capital Securities evidenced by Global
Capital Securities and shall have no obligations to the Owners thereof; and
(ii) the rights of the Owners of the Global Capital Securities
shall be exercised only through the Clearing Agency and shall be limited to
those established by law and agreements between such Owners and the
Clearing Agency and/or the Clearing Agency Participants. Pursuant to the
Certificate Depository Agreement, unless and until Definitive Capital
Securities Certificates are issued pursuant to this Section 5.11 or Section
5.13, the initial Clearing Agency will make book-entry transfers among the
Clearing Agency Participants and receive and transmit payments on the
Capital Securities to such Clearing Agency Participants.
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(h) The Administrative Trustees shall inform the Property Trustee in
writing of the Effective Time of the Exchange Offer or Shelf Registration. Upon
the receipt of such notice from the Administrative Trustees, the Property
Trustee will take such actions as shall be necessary to effectuate the exchange
of any of the Private Capital Securities for Exchange Capital Securities or to
acknowledge the sale of Capital Securities pursuant to a Shelf Registration,
including but not limited to the issuance of Exchange Capital Securities in the
form requested by the Administrative Trustees, the entry of decreases in the
Regulation S Global Security and the 144A Global Security or, if applicable, the
cancellation of Definitive Capital Securities Certificates.
5.12 NOTICES TO CLEARING AGENCY. To the extent that a notice or other
communication to the Owners is required under this Trust Agreement, unless and
until Definitive Capital Securities Certificates shall have been issued to
Owners pursuant to Section 5.13, the Trustees shall give all such notices and
communications specified herein to be given to Owners to the Clearing Agency,
and shall have no obligations to the Owners in respect thereof.
5.13 PROCEDURES FOR ISSUANCE OF DEFINITIVE CAPITAL SECURITIES CERTIFICATES.
Upon surrender to the Securities Registrar of the typewritten Capital Securities
Certificate or Certificates representing the Global Capital Securities
Certificates by the Clearing Agency upon occurrence of any of the events
described in Section 5.11(f), accompanied by registration instructions from the
Holders, the Administrative Trustees, or any one of them, shall execute, the
Property Trustee shall authenticate and the Securities Registrar shall register
the Definitive Capital Securities Certificates in accordance with the
instructions of the Clearing Agency. Neither the Securities Registrar nor the
Trustees shall be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be protected in relying on, such instructions.
Upon the issuance of Definitive Capital Securities Certificates, the Trustees
shall recognize the Holders of the Definitive Capital Securities Certificates as
Securityholders of record. The Definitive Capital Securities Certificates shall
be printed, lithographed or engraved or may be produced in any other manner as
is reasonably acceptable to the Administrative Trustees, as evidenced by the
execution thereof by the Administrative Trustees or any one of them.
5.14 RIGHTS OF SECURITYHOLDERS.
(a) The legal title to the Trust Property is vested exclusively in the
Property Trustee (in its capacity as such) in accordance with Section 2.9, and
the Securityholders shall not have any
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right or title therein other than the undivided beneficial interest in the
assets of the Trust conferred by their Trust Securities and they shall have no
right to call for any partition or division of property, profits or rights of
the Trust except as described below. The Trust Securities shall be personal
property giving only the rights specifically set forth therein and in this Trust
Agreement. The Trust Securities shall have no preemptive or similar rights. When
issued and delivered to Securityholders against payment of the purchase price
therefor, the Trust Securities will be fully paid and nonassessable undivided
beneficial interests in the Trust Property. The Holders of the Trust Securities,
in their capacities as such, shall be entitled to the same limitation of
personal liability extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware.
(b) For so long as any Capital Securities remain Outstanding, if,
upon a Debenture Event of Default, the Debenture Trustee fails or the Holders of
not less than 25% in principal amount of the outstanding Debentures fail to
declare the principal of all of the Debentures to be immediately due and
payable, then the Holders of at least 25% in Liquidation Amount of the Capital
Securities then Outstanding may so declare by notice in writing to the Depositor
and the Debenture Trustee; and upon any such declaration such principal amount
of and the accrued interest on all of the Debentures shall become immediately
due and payable, provided that the payment of principal and interest on such
Debentures shall remain subordinated to the extent provided in the Indenture. At
any time after such a declaration of acceleration with respect to the Debentures
has been made and before a judgment or decree for payment of the money due has
been obtained by the Debenture Trustee as provided in the Indenture, the Holders
of a majority in Liquidation Amount of the Capital Securities, by written notice
to the Property Trustee, the Depositor and the Debenture Trustee, may rescind
and annul such declaration and its consequences if:
(i) the Depositor has paid or deposited with the Debenture
Trustee a sum sufficient to pay
(A) all overdue installments of interest (including any
Additional Interest, as defined in the Indenture) on all of the
Debentures,
(B) the principal of (and premium, if any, on) any
Debentures which have become due (other than by such declaration of
acceleration), and interest thereon at the rate borne by the
Debentures, and
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(C) all sums paid or advanced by the Debenture Trustee under
the Indenture and the reasonable compensation, expenses, disbursements
and advances of the Debenture Trustee and the Property Trustee, their
agents and counsel and all amounts payable to the Debenture Trustee
under Section 7.06 of the Indenture; and
(ii) all Debenture Events of Default, other than the non-
payment of the principal of the Debentures which has become due solely by
such acceleration, have been cured or waived as provided in Article Six of
the Indenture.
The holders of a majority in aggregate Liquidation Amount of the Capital
Securities may, on behalf of the Holders of all the Capital Securities, waive
any past default under the Indenture, except a default in the payment of
principal or interest (unless such default has been cured and a sum sufficient
to pay all matured installments of interest and principal due otherwise than by
acceleration has been deposited with the Debenture Trustee) or a default in
respect of a covenant or provision which under the Indenture cannot be modified
or amended without the consent of the holder of each outstanding Debenture. No
such waiver shall affect any subsequent default or impair any right consequent
thereon. If any such Event of Default is waived by the holders of the Capital
Securities, such waiver will also constitute a waiver with respect to the
holders of Common Securities for all purposes, without any further act, vote or
consent.
Upon receipt by the Property Trustee of written notice declaring such an
acceleration, or rescission and annulment thereof, by Holders of the Capital
Securities, a record date shall be established for determining Holders of
Outstanding Capital Securities entitled to join in such notice, which record
date shall be at the close of business on the day the Property Trustee receives
such notice. The Holders on such record date, or their duly designated proxies,
and only such Persons, shall be entitled to join in such notice, whether or not
such Holders remain Holders after such record date; provided, that, unless such
declaration of acceleration, or rescission and annulment, as the case may be,
shall have become effective by virtue of the requisite percentage of Holders
having joined in such notice prior to the day which is 90 days after such record
date, such notice of declaration of acceleration, or rescission and annulment,
as the case may be, shall automatically and without further action by any Holder
be canceled and of no further effect. Nothing in this paragraph shall prevent a
Holder, or a proxy of a Holder, from giving, after expiration of such 90-day
period, a new written notice of declaration of acceleration, or rescission and
annulment thereof, as the case may be, that is identical to a written
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notice which has been canceled pursuant to the proviso to the preceding
sentence, in which event a new record date shall be established pursuant to the
provisions of this Section 5.14(b).
(c) For so long as any Capital Securities remain Outstanding, to the
fullest extent permitted by law and subject to Article VI of the Indenture, upon
a Debenture Event of Default specified in Section 6.1(a) or 6.1(b) of the
Indenture, any Holder of Capital Securities shall have the right to institute a
proceeding directly against the Depositor, pursuant to Article Six of the
Indenture, for enforcement of payment to such Holder of the principal amount of
(including, premium, if any) or interest on (including Additional Interest, if
any), Debentures having a principal amount equal to the Liquidation Amount of
the Capital Securities of such Holder (a "Direct Action"). Except as set forth
in Section 5.14(b) and this Section 5.14(c), the Holders of Capital Securities
shall have no right to exercise directly any right or remedy available to the
holders of, or in respect of, the Debentures.
The Holders of a majority in Liquidation Amount of the Capital Securities
at the time Outstanding shall have the right to direct the time, method, and
place of conducting any proceeding for any remedy available to the Property
Trustee, or exercising any trust or power conferred on the Property Trustee with
respect to such Capital Securities; provided, however, that the Property Trustee
shall have the right to decline to follow any such direction if the Property
Trustee, being advised by Opinion of Counsel determines that the action so
directed may not lawfully be taken, or if the Property Trustee in good faith
shall determine that the proceedings so directed would involve it in personal
liability or be unduly prejudicial to the rights of Holders of Capital
Securities not parties to such direction; and provided further that nothing in
the Trust Agreement shall impair the right of the Property Trustee to take any
action deemed proper by the Property Trustee and which is not inconsistent with
such direction by such Securityholders.
ARTICLE VI
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
6.1 LIMITATIONS ON VOTING RIGHTS.
(a) Except as provided in this Section, in Sections 5.14, 8.10 and
10.2 and in the Indenture and as otherwise required by law, no Holder of Capital
Securities shall have any right to vote or in any manner otherwise control the
administration, operation and management of the Trust or the obligations of the
parties hereto, nor shall anything herein set forth, or contained in the terms
of the Trust Securities
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Certificates, be construed so as to constitute the Securityholders from time to
time as partners or members of an association.
(b) So long as any Debentures are held by the Property Trustee, the
Trustees shall not (i) direct the time, method and place of conducting any
proceeding for any remedy available to the Debenture Trustee, or executing any
trust or power conferred on the Debenture Trustee with respect to such
Debentures, (ii) waive any past default which is waivable under the Indenture,
(iii) exercise any right to rescind or annul a declaration that the principal of
all the Debentures shall be due and payable or (iv) consent to any amendment,
modification or termination of the Indenture or the Debentures, where the
consent of the holders of Debentures shall be required, without, in each case,
obtaining the prior approval of the Holders of at least a majority in
Liquidation Amount of all Outstanding Capital Securities; provided, however,
that where a consent under the Indenture would require the consent of each
holder of Debentures affected thereby, no such consent shall be given by the
Property Trustee without the prior written consent of each Holder of Capital
Securities. The Trustees shall not revoke any action previously authorized or
approved by a vote of the Holders of Capital Securities, except by a subsequent
vote of the Holders of Capital Securities. In accordance with Section 8.3, the
Property Trustee shall notify all Holders of the Capital Securities of any
notice of default received from the Debenture Trustee with respect to the
Debentures. In addition to obtaining the foregoing approvals of the Holders of
the Capital Securities, prior to taking any of the foregoing actions, the
Trustees shall, at the expense of the Depositor, obtain an Opinion of Counsel to
the effect that such action shall not cause the Trust to fail or cease to be
classified as a grantor trust for United States federal income tax purposes.
(c) If any proposed amendment to this Trust Agreement provides for, or
the Trustees otherwise propose to effect, any action that would adversely affect
in any material respect the powers, preferences or special rights of the Capital
Securities, whether by way of amendment to this Trust Agreement or otherwise,
then the Holders of Outstanding Capital Securities as a class will be entitled
to vote on such amendment or proposal and such amendment or proposal shall not
be effective except with the approval of the Holders of at least a majority in
Liquidation Amount of the Outstanding Capital Securities, except as otherwise
provided in Section 10.2(c). Notwithstanding any other provision of this Trust
Agreement, no amendment to this Trust Agreement may be made if, as a result of
such amendment, it would cause the Trust to fail or cease to be classified as a
grantor trust for United States Federal income tax purposes.
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6.2 NOTICE OF MEETINGS. Notice of all meetings of the Capital
Securityholders, stating the time, place and purpose of the meeting, shall be
given by the Property Trustee pursuant to Section 10.8 to each Capital
Securityholder of record, at his registered address, at least 15 days and not
more than 90 days before the meeting. At any such meeting, any business
properly before the meeting may be so considered whether or not stated in the
notice of the meeting. Any adjourned meeting may be reconvened without further
notice.
6.3 MEETINGS OF CAPITAL SECURITYHOLDERS. No annual meeting of
Securityholders is required to be held. The Administrative Trustees, however,
shall call a meeting of Capital Securityholders to vote on any matter upon the
written request of the Capital Securityholders of record of 25% of the Capital
Securities (based upon their Liquidation Amount) and the Administrative Trustees
or the Property Trustee may, at any time in their discretion, call a meeting of
Capital Securityholders to vote on any matters as to which Capital
Securityholders are entitled to vote.
Capital Securityholders of record of 50% of the Outstanding Capital
Securities (based upon their Liquidation Amount), present in person or by proxy,
shall constitute a quorum at any meeting of Capital Securityholders.
If a quorum is present at a meeting, an affirmative vote by the Capital
Securityholders of record present, in person or by proxy, holding not less than
a majority of the Capital Securities (based upon their Liquidation Amount) held
by the Capital Securityholders of record present, either in person or by proxy,
at such meeting shall constitute the action of the Capital Securityholders,
unless this Trust Agreement requires a greater or lesser number of affirmative
votes.
6.4 VOTING RIGHTS. Securityholders shall be entitled to one vote for each
$1,000 of Liquidation Amount represented by their Trust Securities in respect of
any matter as to which such Securityholders are entitled to vote.
6.5 PROXIES, ETC. At any meeting of Securityholders, any Securityholder
entitled to vote thereat may vote by proxy, provided that no proxy shall be
voted at any meeting unless it shall have been placed on file with the
Administrative Trustees, or with such other officer or agent of the Trust as the
Administrative Trustees may direct, for verification prior to the time at which
such vote shall be taken. Pursuant to a resolution of the Property Trustee,
proxies may be solicited in the name of the Property Trustee or one or more
officers of the Property Trustee. Only Securityholders of record shall be
entitled to vote. When Trust Securities are held jointly by several Persons,
any one of them may vote at any meeting in person or by proxy in respect of
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such Trust Securities, but if more than one of them shall be present at such
meeting in person or by proxy, and such joint owners or their proxies so present
disagree as to any vote to be cast, such vote shall not be received in respect
of such Trust Securities. A proxy purporting to be executed by or on behalf of a
Securityholder shall be deemed valid unless challenged at or prior to its
exercise, and the burden of proving invalidity shall rest on the challenger.
6.6 SECURITYHOLDER ACTION BY WRITTEN CONSENT. Any action that may be
taken by Securityholders at a meeting may be taken without a meeting if
Securityholders holding not less than a majority of all Outstanding Trust
Securities (based upon their Liquidation Amount) entitled to vote in respect of
such action (or such larger or lesser proportion thereof as shall be required by
any express provision of this Trust Agreement) shall consent to the action in
writing.
6.7 RECORD DATE FOR VOTING AND OTHER PURPOSES. Except as provided in
Section 5.14(b), for the purposes of determining the Securityholders who are
entitled to notice of and to vote at any meeting or by written consent, or to
participate in any Distribution on the Trust Securities in respect of which a
record date is not otherwise provided for in this Trust Agreement, or for the
purpose of any other action, the Administrative Trustees may from time to time
fix a date, not more than 90 days prior to the date of any meeting of
Securityholders or the payment of a Distribution or other action, as the case
may be, as a record date for the determination of the identity of the
Securityholders of record for such purposes.
6.8 ACTS OF SECURITYHOLDERS. Any request, demand, authorization,
direction, notice, consent, waiver or other action provided or permitted by this
Trust Agreement to be given, made or taken by Securityholders may be embodied in
and evidenced by one or more instruments of substantially similar tenor signed
by such Securityholders in person or by an agent duly appointed in writing; and,
except as otherwise expressly provided herein, such action shall become
effective when such instrument or instruments are delivered to an Administrative
Trustee. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the
Securityholders signing such instrument or instruments. Proof of execution of
any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Trust Agreement and (subject to Section 8.2)
conclusive in favor of the Trustees, if made in the manner provided in this
Section.
The fact and date of the execution by any Person of any such instrument or
writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer
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authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the execution
thereof. Where such execution is by a signer acting in a capacity other than his
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the execution of any
such instrument or writing, or the authority of the Person executing the same,
may also be proved in any other manner which any Trustee receiving the same
deems sufficient. The ownership of Capital Securities shall be proved by the
Securities Register. Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Securityholder of any Trust Security shall
bind every future Securityholder of the same Trust Security and the
Securityholder of every Trust Security issued upon the registration of transfer
thereof or in exchange therefor or in lieu thereof in respect of anything done,
omitted or suffered to be done by the Trustees or the Trust in reliance thereon,
whether or not notation of such action is made upon such Trust Security.
Without limiting the foregoing, a Securityholder entitled hereunder to take
any action hereunder with regard to any particular Trust Security may do so with
regard to all or any part of the Liquidation Amount of such Trust Security or by
one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such Liquidation Amount.
If any dispute shall arise between the Securityholders and the
Administrative Trustees or among such Securityholders or Trustees with respect
to the authenticity, validity or binding nature of any request, demand,
authorization, direction, consent, waiver or other Act of such Securityholder or
Trustee under this Article VI, then the determination of such matter by the
Property Trustee shall be conclusive with respect to such matter.
6.9 INSPECTION OF RECORDS. Upon reasonable notice to the Administrative
Trustees and the Property Trustee, the records of the Trust shall be open to
inspection by Securityholders during normal business hours for any purpose
reasonably related to such Securityholder's interest as a Securityholder.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
7.1 REPRESENTATIONS AND WARRANTIES OF THE BANK, THE PROPERTY TRUSTEE AND
THE DELAWARE TRUSTEE. The initial Property Trustee and the initial Delaware
Trustee, each severally on behalf of and as to itself,
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hereby represents and warrants for the benefit of the Depositor and the
Securityholders that:
(a) the Property Trustee is a New York banking corporation duly
organized, validly existing and in good standing under the laws of the State of
New York;
(b) the Property Trustee has full corporate power, authority and legal
right to execute, deliver and perform its obligations under this Trust Agreement
and has taken all necessary action to authorize the execution, delivery and
performance by it of this Trust Agreement;
(c) the Delaware Trustee is a Delaware banking corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware, with its principal place of business in the State of Delaware;
(d) the Delaware Trustee has full corporate power, authority and legal
right to execute, deliver and perform its obligations under this Trust Agreement
and has taken all necessary action to authorize the execution, delivery and
performance by it of this Trust Agreement;
(e) this Trust Agreement has been duly authorized, executed and
delivered by the Property Trustee and the Delaware Trustee and constitutes the
valid and legally binding agreement of each of the Property Trustee and the
Delaware Trustee enforceable against each of them in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles;
(f) the execution, delivery and performance of this Trust Agreement
have been duly authorized by all necessary corporate or other action on the part
of the Property Trustee and the Delaware Trustee and do not require any approval
of stockholders of the Property Trustee and the Delaware Trustee and such
execution, delivery and performance will not (i) violate the charter or By-laws
of the Property Trustee or the Delaware Trustee, or (ii) violate any law,
governmental rule or regulation of the United States, the State of New York or
the State of Delaware, as the case may be, governing the banking, trust or
general powers of the Property Trustee or the Delaware Trustee (as appropriate
in context) or any order, judgment or decree applicable to the Property Trustee
or the Delaware Trustee; and
(g) neither the authorization, execution or delivery by the Property
Trustee or the Delaware Trustee of this Trust Agreement nor the consummation of
any of the transactions by the Property Trustee or the
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Delaware Trustee (as appropriate in context) contemplated herein requires the
consent or approval of, the giving of notice to, the registration with or the
taking of any other action with respect to any governmental authority or agency
under the laws of the United States, the State of New York or the State of
Delaware, as the case may be, governing the banking, trust or general powers of
the Property Trustee or the Delaware Trustee, as the case may be.
Any successor Property Trustee or Delaware Trustee, as the case may be,
shall make similar representations and warranties as contained in this Section
7.1 for the benefit of the Depositor and the Securityholders.
ARTICLE VIII
THE TRUSTEES
8.1 CORPORATE PROPERTY TRUSTEE REQUIRED; ELIGIBILITY OF TRUSTEES.
(a) There shall at all times be a Property Trustee hereunder with
respect to the Trust Securities who is not an Affiliate of the Depositor. The
Property Trustee shall be a Person that is eligible pursuant to the Trust
Indenture Act to act as such and has a combined capital and surplus of at least
$50,000,000. If any such Person publishes reports of condition at least
annually, pursuant to law or the requirements of its federal or state
supervising or examining authority, then, for the purposes of this Section
8.1(a), the combined capital and surplus of such Person shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Property Trustee with respect to the
Trust Securities shall cease to be eligible in accordance with the provisions of
this Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
(b) There shall at all times be one or more Administrative Trustees
hereunder with respect to the Trust Securities. Each Administrative Trustee
shall be either a natural person who is at least 21 years of age or a legal
entity that shall act through one or more persons authorized to bind that
entity. No natural person shall be eligible to act as an Administrative Trustee
hereunder unless such person is an officer of the Depositor or an Affiliate of
the Depositor.
(c) There shall at all times be a Delaware Trustee with respect to the
Trust Securities. The Delaware Trustee shall either be (i) a natural person who
is at least 21 years of age and a resident of the State of Delaware or (ii) a
legal entity with its principal place of
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business in the State of Delaware and that otherwise meets the requirements of
applicable Delaware law that shall act through one or more persons authorized to
bind such entity.
8.2 CERTAIN DUTIES AND RESPONSIBILITIES.
(a) The duties and responsibilities of the Trustees shall be as
provided by this Trust Agreement and, in the case of the Property Trustee, by
the Trust Indenture Act, and no implied covenants or obligations shall be read
into this Trust Agreement against the Property Trustee. Notwithstanding the
foregoing, no provision of this Trust Agreement shall require the Trustees to
expend or risk their own funds or otherwise incur any financial liability in the
performance of any of their duties hereunder, or in the exercise of any of their
rights or powers, if they shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it. Whether or not therein expressly so provided,
every provision of this Trust Agreement relating to the conduct or affecting the
liability of or affording protection to the Trustees shall be subject to the
provisions of this Section.
(b) All payments made by the Property Trustee or a Paying Agent in
respect of the Trust Securities shall be made only from the revenue and proceeds
from the Trust Property and only to the extent that there shall be sufficient
revenue or proceeds from the Trust Property to enable the Property Trustee or a
Paying Agent to make payments in accordance with the terms hereof. Each
Securityholder, by its acceptance of a Trust Security, agrees that it will look
solely to the revenue and proceeds from the Trust Property to the extent legally
available for distribution to it as herein provided and that the Trustees are
not personally liable to it for any amount distributable in respect of any Trust
Security or for any other liability in respect of any Trust Security. This
Section 8.2(b) does not limit the liability of the Trustees expressly set forth
elsewhere in this Trust Agreement or, in the case of the Property Trustee, in
the Trust Indenture Act.
(c) No provision of this Trust Agreement shall be construed to relieve
the Property Trustee from liability for its own negligent action, its own
negligent failure to act, or its own wilful misconduct, except that:
(i) In the absence of bad faith on its part, the Property Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Property Trustee and conforming to the
requirements of this Trust Agreement;
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(ii) the Property Trustee shall not be liable for any error of
judgment made in good faith by an authorized officer of the Property
Trustee, unless it shall be proved that the Property Trustee was negligent
in ascertaining the pertinent facts;
(iii) the Property Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in accordance
with the direction of the Holders of not less than a majority in
Liquidation Amount of the Capital Securities or Common Securities, as the
case may be, relating to the time, method and place of conducting any
proceeding for any remedy available to the Property Trustee, or exercising
any trust or power conferred upon the Property Trustee under this Trust
Agreement;
(iv) the Property Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Debentures and the
Payment Account shall be to deal with such property in a similar manner as
the Property Trustee deals with similar property for its own account,
subject to the protections and limitations on liability afforded to the
Property Trustee under this Trust Agreement and the Trust Indenture Act;
(v) the Property Trustee shall not be liable for any interest
on any money received by it except as it may otherwise agree with the
Depositor; and money held by the Property Trustee need not be segregated
from other funds held by it, except in relation to the Payment Account
maintained by the Property Trustee pursuant to Section 3.1 and except to
the extent otherwise required by law; and
(vi) the Property Trustee shall not be responsible for
monitoring the compliance by the Administrative Trustees or the Depositor
with their respective duties under this Trust Agreement, nor shall the
Property Trustee be liable for the default or misconduct of the
Administrative Trustees or the Depositor.
8.3 CERTAIN NOTICES. Within 10 Business Days after the occurrence of any
Event of Default actually known to an officer of the Property Trustee assigned
to its Corporate Trust Office, the Property Trustee shall transmit, in the
manner and to the extent provided in Section 10.8, notice of such Event of
Default to the Securityholders, the
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Administrative Trustees and the Depositor, unless such Event of Default shall
have been cured or waived.
Within ten Business Days after the receipt of notice of the Depositor's
exercise of its right to defer the payment of interest on the Debentures
pursuant to the Indenture, any Administrative Trustee shall transmit, in the
manner and to the extent provided in Section 10.8, notice of such exercise to
the Property Trustee, unless such exercise shall have been revoked, whereupon
the Property Trustee in similar manner shall promptly give notice to the
Securityholders of such exercise or revocation of deferral.
8.4 CERTAIN RIGHTS OF PROPERTY TRUSTEE. Subject to the provisions of
Section 8.2 and except as provided by law:
(a) the Property Trustee may rely, and shall be fully protected in
acting or refraining from acting in good faith, upon any resolution, Opinion of
Counsel, Officers' Certificate, written representation of a Holder or
transferee, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
appraisal, bond, debenture, note, other evidence of indebtedness or other paper
or document reasonably believed by it to be genuine and to have been signed,
sent or presented by the proper party or parties;
(b) if (i) in performing its duties under this Trust Agreement the
Property Trustee is required to decide between alternative courses of action or
(ii) in construing any of the provisions of this Trust Agreement the Property
Trustee finds the same ambiguous or inconsistent with any other provisions
contained herein or (iii) the Property Trustee is unsure of the application of
any provision of this Trust Agreement, then, except as to any matter as to which
the Capital Securityholders are entitled to vote under the terms of this Trust
Agreement, the Property Trustee shall deliver a notice to the Depositor
requesting written instructions of the Depositor as to the course of action to
be taken and the Property Trustee shall take such action, or refrain from taking
such action, as the Property Trustee shall be instructed in writing to take, or
to refrain from taking, by the Depositor; provided, however, that if the
Property Trustee does not receive such instructions of the Depositor within ten
Business Days after it has delivered such notice, or such reasonably shorter
period of time set forth in such notice (which to the extent practicable shall
not be less than two Business Days), it may, but shall be under no duty to, take
or refrain from taking such action not inconsistent with this Trust Agreement as
it shall deem advisable and in the best interests of the Securityholders, in
which event the Property Trustee shall have no liability except for its own bad
faith, negligence or willful misconduct;
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(c) the Property Trustee may consult with counsel of its selection
(which counsel may be counsel to the Property Trustee or the Depositor or any of
its Affiliates, and may include any of its or their employees) and the advice or
opinion of such counsel with respect to legal matters shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
to be taken by it hereunder in good faith and in reliance thereon and in
accordance with such advice or opinion;
(d) the Property Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Trust Agreement at the request or
direction of any of the Securityholders pursuant to this Trust Agreement, unless
such Securityholders shall have offered to the Property Trustee such adequate
security or indemnity against the costs, expenses and liabilities that might be
incurred by it in complying with such request or direction;
(e) the Property Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
approval, bond, or other paper or document, unless requested in writing to do so
by one or more Securityholders;
(f) the Property Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through its
agents or attorneys, provided, however, that the Property Trustee shall not be
responsible for any misconduct or negligence on the part of, or for the
supervision of, any such agent or attorney appointed with due care by it
hereunder;
(g) any direction or act of the Depositor contemplated by this Trust
Agreement shall be sufficiently evidenced by an Officers' Certificate;
(h) whenever in the administration of this Trust Agreement, the
Property Trustee shall deem it desirable that a matter be established before
undertaking, suffering or omitting any action hereunder, the Property Trustee
(unless other evidence is herein specifically prescribed) may, in the absence of
bad faith on its part, request and rely upon an Officers' Certificate which,
upon receipt of such request, shall be promptly delivered by the Depositor;
(i) the Property Trustee shall have no duty to see to any recording,
filing or registration of any instrument (including any financing or
continuation statement or any filing under tax or securities laws) or any
rerecording, refiling or reregistration thereof;
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(j) whenever in the administration of this Trust Agreement the
Property Trustee shall deem it desirable to receive instructions with respect to
enforcing any remedy or right or taking any other action hereunder the Property
Trustee (i) may request instructions from the Holders of the Trust Securities,
which instructions may only be given by the Holders of the same proportion in
Liquidation Amount of the Trust Securities as would be entitled to direct the
Property Trustee under the terms of the Trust Securities in respect of such
remedy, right or action, (ii) may refrain from enforcing such remedy or right or
taking such other action until such instructions are received, and (iii) shall
be protected in acting in accordance with such instructions;
(k) except as otherwise expressly provided by this Trust Agreement,
the Property Trustee shall not be under any obligation to take any action that
is discretionary under the provisions of this Trust Agreement; and
(l) the Property Trustee shall not be charged with knowledge of an
Event of Default, or an event which with the giving of notice or the passage of
time or both would constitute an Event of Default, unless an officer of the
Property Trustee assigned to its Corporate Trust Office obtains actual knowledge
of such event or the Property Trustee receives written notice of such event from
the Depositor, any other Trustee or any Securityholder.
No provision of this Trust Agreement shall be deemed to impose any duty or
obligation on the Property Trustee to perform any act or acts or exercise any
right, power, duty or obligation conferred or imposed on it, in any jurisdiction
in which it shall be illegal, or in which the Property Trustee shall be
unqualified or incompetent in accordance with applicable law, to perform any
such act or acts, or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Property Trustee shall be
construed to be a duty.
8.5 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES. The recitals
contained herein and in the Trust Securities Certificates shall be taken as the
statements of the Trust, and the Trustees do not assume any responsibility for
their correctness. The Trustees shall not be accountable for the use or
application by the Depositor of the proceeds of the Debentures.
8.6 MAY HOLD SECURITIES. Any Trustee or any other agent of any Trustee or
the Trust, in its individual or any other capacity, may become the owner or
pledgee of Trust Securities and, subject to Sections 8.8 and 8.13 and except as
provided in the definition of the term "Outstanding"
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in Article I, may otherwise deal with the Trust with the same rights it would
have if it were not a Trustee or such other agent.
8.7 COMPENSATION; INDEMNITY; FEES. The Depositor agrees:
(a) to pay to the Trustees from time to time such compensation as
shall be agreed in writing between the Depositor and the Trustees for all
services rendered by the Trustees hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust);
(b) except as otherwise expressly provided herein, to reimburse the
Trustees upon request for all reasonable expenses, disbursements and advances
incurred or made by the Trustees in accordance with any provision of this Trust
Agreement (including the reasonable compensation and the expenses and
disbursements of their agents and counsel), except any such expense,
disbursement or advance as may be attributable to their negligence, willful
misconduct or bad faith;
(c) to indemnify and hold harmless (i) each Trustee, (ii) any
Affiliate of any Trustee, (iii) any officer, director, shareholder, employee,
representative or agent of any Trustee, and (iv) any employee or agent of the
Trust or its Affiliates (referred to herein as an "Indemnified Person") from and
against any loss, damage, liability, tax, penalty, expense or claim of any kind
or nature whatsoever incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or administration of the
trust or trusts hereunder, including the costs and expenses of defending itself
against any claim or liability in connection with the exercise or performance of
any of its powers or duties hereunder; and
The provisions of this Section 8.7 shall survive the termination of this
Trust Agreement and the resignation or removal of any Trustee.
No Trustee may claim any lien or charge on any Trust Property as a result
of any amount due pursuant to this Section 8.7.
8.8 CONFLICTING INTERESTS. If the Property Trustee has or shall acquire a
conflicting interest within the meaning of the Trust Indenture Act, the Property
Trustee shall either eliminate such interest or resign, to the extent and in the
manner provided by, and subject to the provisions of, the Trustee Indenture Act
and this Trust Agreement.
8.9 CO-TRUSTEES AND SEPARATE TRUSTEE. At any time or times, for the
purpose of conforming to the legal requirements of the Trust Indenture Act or of
any jurisdiction in which any part of the Trust Property may at the time be
located, the Depositor and the Administrative
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Trustees, except in such instances as set forth in the following sentence, by
agreed action of the majority of such Trustees, shall have power to appoint, and
upon the written request of the Administrative Trustees, the Depositor shall for
such purpose join with the Administrative Trustees in the execution, delivery,
and performance of all instruments and agreements necessary or proper to
appoint, one or more Persons approved by the Property Trustee either to act as
co-trustee, jointly with the Property Trustee, of all or any part of such Trust
Property, or to the extent required by law to act as separate trustee of any
such property, in either case with such powers as may be provided in the
instrument of appointment, and to vest in such Person or Persons in the capacity
aforesaid, any property, title, right or power deemed necessary or desirable,
subject to the other provisions of this Section. If the Depositor does not join
in such appointment within 15 days after the receipt by it of a request so to
do, or in case a Debenture Event of Default has occurred and is continuing, the
Property Trustee alone shall have power to make such appointment. Any co-trustee
or separate trustee appointed pursuant to this Section shall either be (i) a
natural person who is at least 21 years of age and a resident of the United
States or (ii) a legal entity with its principal place of business in the United
States that shall act through one or more persons authorized to bind such
entity.
Should any written instrument from the Depositor be required by any co-
trustee or separate trustee so appointed for more fully confirming to such co-
trustee or separate trustee such property, title, right, or power, any and all
such instruments shall, on request, be executed, acknowledged and delivered by
the Depositor; provided, however, that, if a Debenture Event of Default shall
have occurred and be continuing, the Property Trustee may execute any such
instrument on behalf of the Depositor as its agent and attorney-in-fact
therefor.
Every co-trustee or separate trustee shall, to the extent permitted by law,
but to such extent only, be appointed subject to the following terms, namely:
(a) The Trust Securities shall be executed and delivered and all
rights, powers, duties, and obligations hereunder in respect of the custody of
securities, cash and other personal property held by, or required to be
deposited or pledged with, the Trustees specified hereunder, shall be exercised,
solely by such Trustees and not by such co-trustee or separate trustee.
(b) The rights, powers, duties, and obligations hereby conferred or
imposed upon the Property Trustee in respect of any property covered by such
appointment shall be conferred or imposed upon and exercised or performed by the
Property Trustee or by the Property Trustee
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and such co-trustee or separate trustee jointly, as shall be provided in the
instrument appointing such co-trustee or separate trustee, except to the extent
that under any law of any jurisdiction in which any particular act is to be
performed, the Property Trustee shall be incompetent or unqualified to perform
such act, in which event such rights, powers, duties and obligations shall be
exercised and performed by such co- trustee or separate trustee.
(c) The Property Trustee at any time, by an instrument in writing
executed by it, with the written concurrence of the Depositor, may accept the
resignation of or remove any co-trustee or separate trustee appointed under this
Section, and, in case a Debenture Event of Default has occurred and is
continuing, the Property Trustee shall have power to accept the resignation of,
or remove, any such co-trustee or separate trustee without the concurrence of
the Depositor. Upon the written request of the Property Trustee, the Depositor
shall join with the Property Trustee in the execution, delivery and performance
of all instruments and agreements necessary or proper to effectuate such
resignation or removal; provided, however, that, if a Debenture Event of Default
shall have occurred and be continuing, the Property Trustee may execute any such
instruments or agreements on behalf of the Depositor as its agent and attorney-
in-fact therefor. A successor to any co-trustee or separate trustee so resigned
or removed may be appointed in the manner provided in this Section.
(d) No co-trustee or separate trustee hereunder shall be personally
liable by reason of any act or omission of the Property Trustee or any other
trustee hereunder.
(e) The Trustees shall not be liable by reason of any act of a co-
trustee or separate trustee.
(f) Any Act of Holders delivered to the Property Trustee shall be
deemed to have been delivered to each such co-trustee and separate trustee.
8.10 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR. No resignation or
removal of any Trustee (the "Relevant Trustee") and no appointment of a
successor to any Relevant Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 8.11.
Subject to the immediately preceding paragraph, the Relevant Trustee may
resign at any time by giving written notice thereof to the Securityholders and
the Depositor. Upon giving such notice, a successor Trustee shall be appointed
in accordance with the second succeeding
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paragraph. If a successor is not so appointed within a reasonable time not to
exceed thirty days from the date of the Relevant Trustee's notice of
resignation, or if for any reason the instrument of acceptance by the successor
Trustee required by Section 8.11 shall not have been delivered to the Relevant
Trustee within thirty days after giving of such notice of resignation, the
Relevant Trustee may petition a court of competent jurisdiction in the State of
Delaware to appoint a successor.
Unless a Debenture Event of Default has occurred and is continuing, any
Trustee may be removed at any time by the Holder of the Common Securities. If a
Debenture Event of Default has occurred and is continuing, the Property Trustee
and the Delaware Trustee may be removed at such time by Holders of a majority in
Liquidation Amount of the Outstanding Capital Securities. In no event will the
Holders of the Capital Securities have the right to vote to appoint, remove or
replace the Administrative Trustees, which voting rights are vested exclusively
in the Depositor, as Holder of the Common Securities. Upon removal of any
Relevant Trustee, the successor to the Relevant Trustee may be appointed in
accordance with the next paragraph. If a successor is not so appointed within a
reasonable time not to exceed thirty days from the date of the Relevant
Trustee's removal, or if for any reason the instrument of acceptance by the
successor Trustee required by Section 8.11 shall not have been delivered to the
Relevant Trustee within thirty days of such removal, the Relevant Trustee may
petition a court of competent jurisdiction in the State of Delaware to appoint a
successor Trustee.
If any Trustee shall resign, be removed or become incapable of continuing
to act as Trustee, or if a vacancy shall occur in the office of any Trustee for
any cause, at a time when no Debenture Event of Default shall have occurred and
be continuing, the Common Securityholder, by Act of the Common Securityholder
delivered to the Relevant Trustee, shall promptly appoint a successor Trustee or
Trustees, and such successor Trustee shall comply with the applicable
requirements of Section 8.11. If the Property Trustee or the Delaware Trustee
shall resign, be removed or become incapable of continuing to act as the
Property Trustee or the Delaware Trustee, as the case may be or, if a vacancy
shall occur in such office for any cause, at a time when a Debenture Event of
Default shall have occurred and be continuing, the Capital Securityholders, by
Act of the Securityholders of a majority in Liquidation Amount of the Capital
Securities then Outstanding delivered to the Relevant Trustee, shall promptly
appoint a successor Trustee or Trustees, and such successor Trustee or Trustees
shall comply with the applicable requirements of Section 8.11. If an
Administrative Trustee shall resign, be removed or become incapable of acting as
Administrative Trustee or, if a vacancy shall occur in such office for any
cause, at a time when a Debenture Event of Default shall have occurred and be
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continuing, the Common Securityholder by Act of the Common Securityholder
delivered to the Relevant Trustee shall promptly appoint a successor
Administrative Trustee or Administrative Trustees and such successor
Administrative Trustee or Administrative Trustees shall comply with the
applicable requirements of Section 8.11. If no successor Trustee shall have been
so appointed by the Common Securityholder or the Capital Securityholders, as the
case may be, and accepted appointment in the manner required by Section 8.11,
any Securityholder who has been a Securityholder of Trust Securities for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
The Property Trustee shall give notice of each resignation, removal or
other vacancy of a Trustee, and of each appointment of a successor Trustee, to
all Securityholders in the manner provided in Section 10.8 and shall give notice
to the Depositor. Each notice shall include the name of the successor Trustee
and the address of its Corporate Trust Office if it is the Property Trustee.
Notwithstanding the foregoing or any other provision of this Trust
Agreement, in the event any Administrative Trustee or a Delaware Trustee who is
a natural person dies or becomes, in the opinion of the Depositor, incompetent
or incapacitated, the vacancy created by such death, incompetence or incapacity
may be filled by (a) the unanimous act of the remaining Administrative Trustees
if there are at least two of them or (b) otherwise by the Depositor (with the
successor in each case being a Person who satisfies the eligibility requirement
for Administrative Trustees or Delaware Trustee, as the case may be, set forth
in Section 8.1).
8.11 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR. In case of the appointment
hereunder of a successor to a Relevant Trustee, the Relevant Trustee and such
successor Trustee shall execute and deliver an amendment hereto wherein such
successor Trustee shall accept such appointment and which shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, such successor Trustee all of the rights, powers, trusts and duties of
the Relevant Trustee with respect to the Trust Securities and the Trust.
Upon the execution and delivery of such amendment, the resignation or
removal of the Relevant Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance by any Person, shall become vested with the rights, powers, trusts
and duties of the Relevant Trustee; but, on request of the Trust or any
successor Trustee such Relevant Trustee shall, upon payment of its charges, duly
assign, transfer and deliver to such successor Trustee all Trust Property, all
proceeds thereof and money
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held by such Relevant Trustee hereunder with respect to the Trust Securities and
the Trust.
Upon request of any such successor Trustee, the Trust shall execute any and
all instruments for more fully and certainly vesting in and confirming to such
successor Trustee all such rights, powers and trusts referred to in the first or
second preceding paragraph.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
8.12 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS. Any
Person into which the Property Trustee or the Delaware Trustee may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion or consolidation to which such Relevant Trustee shall be a
party, or any Person succeeding to all or substantially all the corporate trust
business of such Relevant Trustee, shall be the successor of such Relevant
Trustee hereunder, provided such Person shall be otherwise qualified and
eligible under this Article, without the execution or filing of any paper or any
further act on the part of any of the parties hereto.
8.13 PROPERTY TRUSTEE MAY FILE PROOFS OF CLAIMS. In case of the pendency
of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other similar judicial proceeding
relative to the Trust or any other obligor upon the Trust Securities or the
property of the Trust or of such other obligor or their creditors, the Property
Trustee (irrespective of whether any Distributions or other amounts due on the
Trust Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Property Trustee shall
have made any demand on the Trust for the payment of any past due Distributions
or such other amounts) shall be entitled and empowered, to the fullest extent
permitted by law, by intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of any
Distributions and other amounts owing and unpaid in respect of the Trust
Securities and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Property Trustee (including any
claim for the reasonable compensation, expenses, disbursements and advances of
the Property Trustee, its agents and counsel) and of the Holders allowed in such
judicial proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
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and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Property Trustee and, in the event the
Property Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Property Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Property Trustee, its
agents and counsel, and any other amounts due the Property Trustee under Section
8.7.
Nothing herein contained shall be deemed to authorize the Property Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the Trust
Securities or the rights of any Holder thereof or to authorize the Property
Trustee to vote in respect of the claim of any Holder in any such proceeding.
8.14 REPORTS BY PROPERTY TRUSTEE.
(a) Not later than November 15 of each year commencing November 15,
1998, the Property Trustee shall transmit to all Securityholders in accordance
with Section 10.8, and to the Depositor, a brief report dated as of the
immediately preceding September 15 concerning the Property Trustee and its
actions under this Trust Agreement if and as may be required pursuant to Section
313(a) of the Trust Indenture Act.
(b) In addition the Property Trustee shall transmit to
Securityholders such other reports concerning the Property Trustee and its
actions under this Trust Agreement as would be required pursuant to the Trust
Indenture Act were this Trust Agreement to be qualified under the Trust
Indenture Act at the times and in the manner provided pursuant thereto.
(c) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Property Trustee with any interdealer
quotation system or self-regulatory organization upon which the Trust Securities
are designated for trading, with the Commission and with the Depositor.
8.15 REPORTS TO THE PROPERTY TRUSTEE. The Depositor and the Administrative
Trustees on behalf of the Trust shall provide to the Property Trustee such
documents, reports and information as required by Section 314 of the Trust
Indenture Act (if any) and the compliance certificate required by Section
314(a)(4) of the Trust Indenture Act in the form, in the manner and at the times
required by Section 314 of the Trust Indenture Act, such compliance certificate
to be delivered annually on or before 120 days after the end of each fiscal year
of the Depositor.
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8.16 EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT. Each of the
Depositor and the Administrative Trustees on behalf of the Trust shall provide
to the Property Trustee such evidence of compliance with such conditions
precedent, if any, provided for in this Trust Agreement that relate to any of
the matters set forth in Section 314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given by an officer pursuant to Section
314(c)(1) of the Trust Indenture Act shall be given in the form of an Officers'
Certificate.
8.17 NUMBER OF TRUSTEES.
(a) The initial number of Trustees shall be four, provided that the
Holder of all of the Common Securities by written instrument may increase or
decrease the number of Administrative Trustees. The Property Trustee and the
Delaware Trustee may be the same Person.
(b) If a Trustee ceases to hold office for any reason and the number
of Administrative Trustees is not reduced pursuant to Section 8.17(a), or if the
number of Trustees is increased pursuant to Section 8.17(a), a vacancy shall
occur. The vacancy shall be filled with a Trustee appointed in accordance with
the provisions of Section 8.10 relating to appointment of a successor Trustee
upon resignation of a Trustee.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee shall not operate
to dissolve, terminate or annul the Trust. Whenever a vacancy in the number of
Administrative Trustees shall occur, until such vacancy is filled by the
appointment of an Administrative Trustee in accordance with Section 8.10, the
Administrative Trustees in office, regardless of their number (and
notwithstanding any other provision of this Agreement), shall have all the
powers granted to the Administrative Trustees and shall discharge all duties
imposed upon the Administrative Trustees by this Trust Agreement.
8.18 DELEGATION OF POWER.
(a) Any Administrative Trustee may, by power of attorney consistent
with applicable law, delegate to any other natural person over the age of 21 his
or her power for the purpose of executing any documents contemplated in Section
2.7(a) or making any other governmental filing; and
(b) The Administrative Trustees shall have power to delegate from
time to time to such of their number or to the Depositor the doing of such
things and the execution of such instruments either in the name
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of the Trust or the names of the Administrative Trustees or otherwise as the
Administrative Trustees may deem expedient, to the extent such delegation is not
prohibited by applicable law or contrary to the provisions of this Trust
Agreement, as set forth herein.
ARTICLE IX
TERMINATION, LIQUIDATION AND MERGER
9.1 TERMINATION UPON EXPIRATION DATE. Unless earlier terminated, the
Trust shall automatically terminate on December 31, 2028 (the "Expiration
Date"), following the distribution of the Trust Property in accordance with
Section 9.4.
9.2 EARLY TERMINATION. The first to occur of any of the following events
is an "Early Termination Event":
(a) the commencement by the Depositor of a voluntary case under
Chapter 7 or Chapter 11 of the federal Bankruptcy Code or any other similar
state or federal law now or hereafter in effect, or the consent by the Depositor
to the entry of a decree or order for relief in an involuntary case under any
such law, or the consent by the Depositor to the appointment of or the taking of
possession by a liquidating agent or committee, conservator or receiver of the
Depositor or any substantial part of its property or the general assignment by
the Depositor for the benefit of its creditors, or the admission by the
Depositor in writing of its inability to pay its debts as they become due;
(b) the entry of a decree or order for relief by a court having
jurisdiction in the premises in respect of the Depositor in an involuntary case
under Chapter 7 or Chapter 11 of the federal Bankruptcy Code or any other
similar state or federal law now or hereafter in effect, and the continuance of
any such decree or order unstayed and in effect for a period of 60 days, or the
appointment of or the taking of possession by a liquidating agent or committee,
conservator or receiver of the Depositor or any substantial part of its property
and the continuance of any such appointment unstayed and in effect for a period
of 60 days;
(c) the dissolution or liquidation of the Depositor;
(d) the written direction to the Property Trustee from the Depositor
at any time to dissolve the Trust and distribute Debentures to Securityholders
in exchange for a Like Amount of the Trust Securities (which direction is
optional and wholly within the discretion of the Depositor), subject to the
Depositor having received an Opinion of Counsel to the effect that such
distribution will not be a taxable event
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for United States federal income tax purposes to Holders of Capital Securities;
(e) the redemption of all of the Trust Securities in connection with
the redemption of all the Debentures; and
(f) the entry of an order for dissolution of the Trust by a court of
competent jurisdiction.
9.3 TERMINATION. The respective obligations and responsibilities of the
Trustees and the Trust created and continued hereby shall terminate upon the
latest to occur of the following: (a) the distribution by the Property Trustee
to Securityholders upon the liquidation of the Trust pursuant to Section 9.4, or
upon the redemption of all of the Trust Securities pursuant to Section 4.2, of
all cash or securities required to be distributed hereunder upon the final
payment of the Trust Securities; (b) the payment of any and all expenses owed or
liabilities by the Trust; and (c) the discharge of all administrative duties of
the Administrative Trustees, including the performance of any tax reporting
obligations with respect to the Trust or the Securityholders.
9.4 LIQUIDATION.
(a) If an Early Termination Event specified in clause (a), (b), (c),
(d) or (f) of Section 9.2 occurs or upon the Expiration Date, the Trust shall be
liquidated by the Trustees as expeditiously as the Trustees determine to be
possible by distributing, after satisfaction of liabilities to creditors of the
Trust as provided by applicable law, to each Securityholder a Like Amount of
Debentures, subject to Section 9.4(d). Notice of liquidation shall be given by
the Property Trustee by first-class mail, postage prepaid mailed not later than
20 nor more than 60 days prior to the Liquidation Date to each Holder of Trust
Securities at such Holder's address appearing in the Securities Register. All
notices of liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation Date, the Trust
Securities will no longer be deemed to be Outstanding and any Trust
Securities Certificates not surrendered for exchange will be deemed to
represent a Like Amount of Debentures; and
(iii) provide such information with respect to the mechanics by
which Holders may exchange Trust Securities Certificates for Debentures, or
if Section 9.4(d) applies
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receive a Liquidation Distribution, as the Administrative Trustees or the
Property Trustee shall deem appropriate.
(b) Except where Section 9.2(c) or 9.4(d) applies, in order to effect
the liquidation of the Trust and distribution of the Debentures to
Securityholders, the Property Trustee shall establish a record date for such
distribution (which shall be not more than 45 days nor less than 20 days prior
to the Liquidation Date) and, either itself acting as exchange agent or through
the appointment of a separate exchange agent, shall establish such procedures as
it shall deem appropriate to effect the distribution of Debentures in exchange
for the Outstanding Trust Securities Certificates.
(c) Except where Section 9.2(c) or 9.4(d) applies, after the
Liquidation Date, (i) the Trust Securities will no longer be deemed to be
Outstanding, (ii) certificates representing a Like Amount of Debentures will be
issued to Holders of Trust Securities Certificates, upon surrender of such
certificates to the Property Trustee or its agent for exchange, (iii) any Trust
Securities Certificates not so surrendered for exchange will be deemed to
represent a Like Amount of Debentures, accruing interest at the rate provided
for in the Debentures from the last Distribution Date on which a Distribution
was made on such Trust Securities Certificates until such certificates are so
surrendered (and until such certificates are so surrendered, no payments of
interest or principal will be made to Holders of Trust Securities Certificates
with respect to such Debentures) and (iv) all rights of Securityholders holding
Trust Securities will cease, except the right of such Securityholders to receive
the Like Amount of Debentures upon surrender of Trust Securities Certificates.
(d) In the event that, notwithstanding the other provisions of this
Section 9.4, whether because of an order for dissolution entered by a court of
competent jurisdiction or otherwise, distribution of the Debentures in the
manner provided herein is determined by the Property Trustee not to be
practicable, the Trust Property shall be liquidated, and the Trust shall be
dissolved, wound-up and terminated, by the Property Trustee in such manner as
the Property Trustee determines. In such event, on the date of the dissolution
of the Trust, Securityholders will be entitled to receive out of the assets of
the Trust available for distribution to Securityholders, after satisfaction of
liabilities to creditors of the Trust as provided by applicable law, an amount
equal to the Liquidation Amount per Trust Security plus accumulated and unpaid
Distributions thereon to the date of payment (such amount being the "Liquidation
Distribution"). If, upon any such dissolution, winding up or termination, the
Liquidation Distribution can be paid only in part because the Trust has
insufficient assets available to pay in full the aggregate Liquidation
Distribution, then, subject to the next succeeding
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sentence, the amounts payable directly by the Trust on the Trust Securities
shall be paid on a pro rata basis (based upon Liquidation Amounts). The Holder
of the Common Securities will be entitled to receive Liquidation Distributions
upon any such dissolution, winding-up or termination pro rata (determined as
aforesaid) with Holders of Capital Securities, except that, if a Debenture Event
of Default has occurred and is continuing, the Capital Securities shall have a
priority over the Common Securities.
9.5 MERGERS, CONSOLIDATIONS, AMALGAMATIONS OR REPLACEMENTS OF THE TRUST.
The Trust may not merge with or into, consolidate, amalgamate, or be replaced
by, or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, except pursuant to this Article IX. At the request of
the Depositor, with the consent of the Administrative Trustees but without the
consent of the Holders of the Capital Securities, the Property Trustee or the
Delaware Trustee, the Trust may merge with or into, consolidate, amalgamate, or
be replaced by or convey, transfer or lease its properties and assets
substantially as an entirety to a trust organized as such under the laws of any
State; provided, however, that (i) such successor entity either (a) expressly
assumes all of the obligations of the Trust with respect to the Capital
Securities or (b) substitutes for the Capital Securities other securities having
substantially the same terms as the Capital Securities (the "Successor
Securities") so long as the Successor Securities rank the same as the Capital
Securities rank in priority with respect to distributions and payments upon
liquidation, redemption and otherwise, (ii) the Depositor expressly appoints a
trustee of such successor entity possessing the same powers and duties as the
Property Trustee as the holder of the Debentures, (iii) the Successor Securities
are listed, or any Successor Securities will (subject to applicable principles
of federal securities laws) be listed upon notification of issuance, on any
national securities exchange or other organization on which the Capital
Securities are then listed, if any, (iv) such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not cause the
Capital Securities (including any Successor Securities) to be downgraded by any
nationally recognized statistical rating organization, (v) such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease does not
adversely affect the rights, preferences and privileges of the Holders of the
Capital Securities (including any Successor Securities) in any material respect
(other than with respect to a dilution of such Holder's interest in the new
entity), (vi) such successor entity has a purpose substantially identical to
that of the Trust, (vii) prior to such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, the Depositor has received an
opinion from independent counsel to the Trust to the effect that (a) such
merger, consolidation, amalgamation, replacement, conveyance, transfer or lease
does not adversely affect the rights, preferences and
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privileges of the Holders of the Capital Securities (including any Successor
Securities) in any material respect (other than with respect to a dilution of
such Holder's interest in the new entity), and (b) following such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease, neither
the Trust nor such successor entity will be required to register as an
investment company under the 1940 Act and (viii) the Depositor or any permitted
successor or assignee owns all of the common securities of such successor entity
and guarantees the obligations of such successor entity under the Successor
Securities at least to the extent provided by the Guarantee. Notwithstanding the
foregoing, the Trust shall not, except with the consent of Holders of 100% in
Liquidation Amount of the Capital Securities, consolidate, amalgamate, merge
with or into, or be replaced by or convey, transfer or lease its properties and
assets substantially as an entirety to any other Person or permit any other
Person to consolidate, amalgamate, merge with or into, or replace it if such
consolidation, amalgamation, merger, replacement, conveyance, transfer or lease
would cause the Trust or the successor entity to be classified as other than a
grantor trust for United States federal income tax purposes.
ARTICLE X
MISCELLANEOUS PROVISIONS
10.1 LIMITATION OF RIGHTS OF SECURITYHOLDERS TO TERMINATE TRUST. Subject
to Section 9.2, the death, incapacity, dissolution, liquidation, termination or
bankruptcy of any Person having an interest, beneficial or otherwise, in Trust
Securities shall not operate to terminate this Trust Agreement, dissolve,
terminate or annul the Trust, nor entitle the legal representatives, successors
or heirs of such Person or any Securityholder for such Person, to claim an
accounting, take any action or bring any proceeding in any court for a partition
or winding up of the arrangements contemplated hereby, nor otherwise affect the
rights, obligations and liabilities of the parties hereto or any of them.
10.2 AMENDMENT.
(a) This Trust Agreement may be amended from time to time by the
Property Trustee, the Delaware Trustee, the Administrative Trustees and the
Depositor, without the consent of any Securityholders, (i) to cure any
ambiguity, correct or supplement any provision herein that may be inconsistent
with any other provision herein, or to make any other provisions with respect to
matters or questions arising under this Trust Agreement, which shall not be
inconsistent with the other provisions of this Trust Agreement or (ii) to
modify, eliminate or add to any provisions of this Trust Agreement to such
extent as shall be necessary to ensure that the Trust will be classified for
United States federal
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income tax purposes as a grantor trust at all times that any Trust Securities
are outstanding or to ensure that the Trust will not be required to register as
an investment company under the 1940 Act; provided, however, that, in the case
of clause (i), any such action shall not adversely affect in any material
respect the interests of any Securityholder, and any amendments of this Trust
Agreement shall become effective when notice thereof is given to the
Securityholders.
(b) Except as provided in Section 10.2(c) hereof, any provision of
this Trust Agreement may be amended by the Trustees and the Depositor with (i)
the consent of Trust Securityholders representing not less than a majority
(based upon Liquidation Amounts) of the Trust Securities then Outstanding and
(ii) receipt by the Trustees of an Opinion of Counsel to the effect that such
amendment or the exercise of any power granted to the Trustees in accordance
with such amendment will not affect the Trust's status as a grantor trust for
United States federal income tax purposes or the Trust's exemption from status
of an investment company under the 1940 Act.
(c) In addition to and notwithstanding any other provision in this
Trust Agreement, without the consent of each affected Securityholder (such
consent being obtained in accordance with Section 6.3 or 6.6 hereof), this Trust
Agreement may not be amended to (i) change the amount or timing of any
Distribution on the Trust Securities or otherwise adversely affect the amount of
any Distribution required to be made in respect of the Trust Securities as of a
specified date or (ii) restrict the right of a Securityholder to institute suit
for the enforcement of any such payment on or after such date; and,
notwithstanding any other provision herein, without the unanimous consent of the
Securityholders (such consent being obtained in accordance with Section 6.3 or
6.6 hereof), this paragraph (c) of this Section 10.2 may not be amended.
(d) Notwithstanding any other provision of this Trust Agreement, no
Trustee shall enter into or consent to any amendment to this Trust Agreement
which would cause the Trust to fail or cease to qualify for the exemption from
status of an investment company under the 1940 Act or fail or cease to be
classified as a grantor trust for United States federal income tax purposes.
(e) Notwithstanding anything in this Trust Agreement to the contrary,
without the consent of the Depositor, this Trust Agreement may not be amended in
a manner which imposes any additional obligation on the Depositor.
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(f) In the event that any amendment to this Trust Agreement is made,
the Administrative Trustees shall promptly provide to the Depositor a copy of
such amendment.
(g) Neither the Property Trustee nor the Delaware Trustee shall be
required to enter into any amendment to this Trust Agreement which affects its
own rights, duties or immunities under this Trust Agreement. The Property
Trustee shall be entitled to receive an Opinion of Counsel and an Officers'
Certificate stating that any amendment to this Trust Agreement is in compliance
with this Trust Agreement.
10.3 SEPARABILITY. In case any provision in this Trust Agreement or in the
Trust Securities Certificates shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
10.4 GOVERNING LAW. THIS TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF
EACH OF THE SECURITYHOLDERS, THE TRUST AND THE TRUSTEES WITH RESPECT TO THIS
TRUST AGREEMENT AND THE TRUST SECURITIES SHALL BE CONSTRUED IN ACCORDANCE WITH
AND GOVERNED BY THE LAWS OF THE STATE OF DELAWARE (WITHOUT REGARD TO CONFLICT OF
LAWS PRINCIPLES), PROVIDED, THAT THE IMMUNITIES AND STANDARD OF CARE OF THE
PROPERTY TRUSTEE IN CONNECTION WITH THE ADMINISTRATION OF ITS TRUSTS AND DUTIES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE INTERNAL
LAWS OF THE STATE OF NEW YORK.
10.5 PAYMENTS DUE ON NON-BUSINESS DAY. If the date fixed for any payment
on any Trust Security shall be a day that is not a Business Day, then such
payment need not be made on such date but may be made on the next succeeding day
that is a Business Day, with the same force and effect as though made on the
date fixed for such payment, and no interest shall accrue thereon for the period
after such date.
10.6 SUCCESSORS. This Trust Agreement shall be binding upon and shall
inure to the benefit of any successor to the Depositor, the Trust or the
Relevant Trustee, including any successor by operation of law.
10.7 HEADINGS. The Article and Section headings are for convenience only
and shall not affect the construction of this Trust Agreement.
10.8 REPORTS, NOTICES AND DEMANDS. Any report, notice, demand or other
communication which by any provision of this Trust Agreement is required or
permitted to be given or served to or upon any Securityholder or the Depositor
may be given or served in writing by deposit thereof, first-class postage
prepaid, in the United States mail, by hand delivery or by facsimile
transmission, in each case, addressed, (a) in the case
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of a Capital Securityholder, to such Capital Securityholder as such
Securityholder's name and address may appear on the Securities Register; and (b)
in the case of the Common Securityholder or the Depositor, to Dominion
Resources, Inc., 901 E. Byrd Street, Richmond, Virginia 23219, Attention:
Treasurer, Facsimile No.: (804) 775-5819 (until another address is designated by
notice to the Trustees). Such notice, demand or other communication to or upon a
Securityholder shall be deemed to have been sufficiently given or made, for all
purposes, upon hand delivery, mailing or transmission.
Any notice, demand or other communication which by any provision of this
Trust Agreement is required or permitted to be given or served to or upon the
Trust, the Property Trustee, the Delaware Trustee or the Administrative Trustees
shall be given in writing addressed (until another address is designated by
notice to the other parties hereto) as follows: (a) with respect to the
Property Trustee to The Chase Manhattan Bank, 450 West 33rd Street, New York,
New York 10001, Attention: Corporate Trustee Administration, Facsimile No.:
(212) 946-8159/60, (b) with respect to the Delaware Trustee, to Chase Manhattan
Bank Delaware, 1201 Market Street, Wilmington, Delaware 19001, Attention:
Corporate Trustee Administration, Facsimile No. (302) 984-4903: and (c) with
respect to the Administrative Trustees, to them at the address above for notices
to the Depositor, marked "Attention: Administrative Trustees of Dominion
Resources Capital Trust I, Facsimile No.: (804) 775-5819. Such notice, demand
or other communication to or upon the Trust, the Property Trustee or the
Delaware Trustee shall be deemed to have been sufficiently given or made only
upon actual receipt of the writing by the Trust, the Property Trustee or the
Delaware Trustee, as the case may be.
10.9 FISCAL YEAR. The fiscal year ("Fiscal Year") of the Trust shall be a
52/53-week year corresponding with that of the Depositor, or such other year as
is required by the Code.
10.10 CERTAIN ACCOUNTING MATTERS.
(a) At all times during the existence of the Trust, the
Administrative Trustees shall keep, or cause to be kept, full books of account,
records and supporting documents, which shall reflect in reasonable detail, each
transaction of the Trust. The books of account shall be maintained on the
accrual method of accounting, in accordance with generally accepted accounting
principles, consistently applied. The Trust shall use the accrual method of
accounting for United States federal income tax purposes. The books of account
and the records of the Trust shall be examined by and reported upon as of the
end of each Fiscal Year of the Trust by a firm of independent certified public
accountants selected by the Administrative Trustees.
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(b) The Administrative Trustees shall cause to be duly prepared and
delivered to each of the Holders, any annual United States federal income tax
information statement, required by the Code, containing such information with
regard to the Securities held by each Holder as is required by the Code and the
Treasury Regulations.
(c) The Administrative Trustees shall cause to be duly prepared and
filed with the appropriate taxing authority, an annual United States federal
income tax return, on a Form 1041 or such other form required by United States
federal income tax law, and any other annual income tax returns required to be
filed by the Administrative Trustees on behalf of the Trust with any state or
local taxing authority.
10.11 BANKING. The Trust shall maintain one or more bank accounts in
the name and for the sole benefit of the Trust; provided, however, that all
payments of funds in respect of the Debentures held by the Property Trustee
shall be made directly to the Payment Account and no other funds of the Trust
shall be deposited in the Payment Account. The sole signatories for such
accounts shall be designated by the Administrative Trustees; provided, however,
that the Property Trustee shall designate the signatories for the Payment
Account.
10.12 WITHHOLDING. The Trust and the Administrative Trustees shall
comply with all withholding requirements under United States federal, state and
local law. The Trust shall request, and the Holders shall provide to the Trust,
such forms or certificates as are necessary to establish an exemption from
withholding with respect to each Holder, and any representations and forms as
shall reasonably be requested by the Trust to assist it in determining the
extent of, and in fulfilling, its withholding obligations. The Administrative
Trustees shall file required forms with applicable jurisdictions and, unless an
exemption from withholding is properly established by a Holder, shall remit
amounts withheld with respect to the Holder to applicable jurisdictions. To the
extent that the Trust is required to withhold and pay over any amounts to any
authority with respect to Distributions or allocations to any Holder, the amount
withheld shall be deemed to be a Distribution in the amount of the withholding
to the Holder. In the event of any claim over withholding, Holders shall be
limited to an action against the applicable jurisdiction. If the amount required
to be withheld was not withheld from actual Distributions made, the Trust may
reduce subsequent Distributions by the amount of such withholding.
10.13 TRUST INDENTURE ACT; CONFLICT WITH TRUST INDENTURE ACT.
(a) This Trust Agreement is intended to be in conformity with the
provisions of the Trust Indenture Act that would be required to be part of this
Trust Agreement were this Trust Agreement to be qualified
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under the Trust Indenture Act and shall, to the extent applicable, be governed
by such provisions.
(b) The Property Trustee shall be the only Trustee which is a trustee
for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts with the
duties imposed under Sections 310 through 318 of the Trust Indenture Act were
this Trust Agreement to be qualified under the Trust Indenture Act, such duties
shall control. If any provision of this Trust Agreement modifies or excludes any
provision of the Trust Indenture Act which may be so modified or excluded, the
Trust Indenture Act provision shall be deemed to apply to this Trust Agreement
as so modified or excluded, as the case may be.
(d) The application of the Trust Indenture Act to this Trust
Agreement shall not affect the nature of the Trust Securities as equity
securities representing undivided beneficial interests in the assets of the
Trust.
10.14 ACCEPTANCE OF TERMS OF TRUST AGREEMENT, GUARANTEE, REGISTRATION
RIGHTS AGREEMENTS AND INDENTURE. THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY
OR ANY INTEREST THEREIN BY OR ON BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL
OWNER, WITHOUT ANY SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL
CONSTITUTE THE UNCONDITIONAL ACCEPTANCE BY THE SECURITYHOLDER AND ALL OTHERS
HAVING A BENEFICIAL INTEREST IN SUCH TRUST SECURITY OF ALL THE TERMS AND
PROVISIONS OF THIS TRUST AGREEMENT AND AGREEMENT TO THE SUBORDINATION PROVISIONS
AND OTHER TERMS OF THE GUARANTEE, THE REGISTRATION RIGHTS AGREEMENTS AND THE
INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF THE TRUST, SUCH SECURITYHOLDER
AND SUCH OTHERS THAT THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT SHALL BE
BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST AND SUCH SECURITYHOLDER
AND SUCH OTHERS.
10.15 COUNTERPARTS. This Trust Agreement 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.
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IN WITNESS WHEREOF, the parties have executed this Amended and Restated
Trust Agreement of Dominion Resources Capital Trust I as of the date first above
written.
DOMINION RESOURCES, INC.
By: /s/ Edgar M. Roach, Jr.
-------------------------------
Name: Edgar M. Roach, Jr.
Title: Executive Vice President
THE CHASE MANHATTAN BANK
as Property Trustee
By: /s/ G. McFarlane
-------------------------------
Name: G. McFarlane
Title: Vice President
CHASE MANHATTAN BANK DELAWARE
as Delaware Trustee
By: /s/ John J. Cashin
-------------------------------
Name: John J. Cashin
Title: Vice President
/s/ Edgar M. Roach, Jr.
-----------------------------------
Edgar M. Roach, Jr., as
Administrative Trustee
/s/ G. Scott Hetzer
-----------------------------------
G. Scott Hetzer, as Administrative
Trustee
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EXHIBIT A
CERTIFICATE OF TRUST
OF
DOMINION RESOURCES CAPITAL TRUST I
THIS CERTIFICATE OF TRUST of Dominion Resources Capital Trust I (the
"Trust"), dated as of October 31, 1997, is being duly executed and filed by the
undersigned, as trustee, to form a business trust under the Delaware Business
Trust Act (12 Del. C. (S)3801, et seq.).
1. Name. The name of the business trust formed hereby is Dominion
----
Resources Capital Trust I.
2. Delaware Trustee. The name and business address of the trustee of the
----------------
Trust with a principal place of business in the State of Delaware is Chase
Manhattan Bank Delaware, 1201 Market Street, Wilmington, Delaware 19801.
3. Effective Date. This Certificate of Trust shall be effective upon
--------------
filing.
IN WITNESS WHEREOF, the undersigned trustee of the Trust has executed this
Certificate of Trust as of the date first-above written.
CHASE MANHATTAN BANK DELAWARE,
not in its individual capacity
but solely as trustee of the Trust
By: /s/ Denis Kelly
-----------------------------------------
Name: DENIS KELLY
Title: TRUST OFFICER
<PAGE>
EXHIBIT B
FORM OF 144A GLOBAL SECURITY
This Capital Security is a 144A Global Security within the meaning of the
Trust Agreement hereinafter referred to and is registered in the name of The
Depository Trust Company ("DTC") or a nominee of DTC. This Capital Security is
exchangeable for Capital Securities registered in the name of a person other
than DTC or its nominee only in the limited circumstances described in the Trust
Agreement and no transfer of this Capital Security (other than a transfer of
this Capital Security as a whole by DTC to a nominee of DTC or by a nominee of
DTC to DTC or another nominee of DTC) may be registered except in limited
circumstances.
Unless this Capital Security is presented by an authorized representative
of DTC, a New York Corporation (55 Water Street, New York), to Dominion
Resources Capital Trust I or its agent for registration of transfer, exchange or
payment, and any Capital Security issued is registered in the name of Cede & Co.
or such other name as is requested by an authorized representative of DTC (and
any payment hereon 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 A PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
THE CAPITAL SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND,
ACCORDINGLY, MAY NOT BE OFFERED, SOLD, OR OTHERWISE TRANSFERRED WITHIN THE
UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS
SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, EACH HOLDER OF
THE CAPITAL SECURITIES EVIDENCED HEREBY, AND EACH PERSON THAT ACQUIRES A
BENEFICIAL INTEREST IN SUCH CAPITAL SECURITIES, (1) REPRESENTS THAT (A) IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT) OR (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501
(a)(1),(2),(3) OR (7) UNDER THE SECURITIES ACT) ("INSTITUTIONAL ACCREDITED
INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THE CAPITAL
SECURITIES EVIDENCED HEREBY IN AN OFFSHORE TRANSACTION, (2) AGREES THAT IT WILL
NOT, PRIOR TO THE EXPIRATION OF THE HOLDING PERIOD
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APPLICABLE TO SALES OF THE CAPITAL SECURITIES EVIDENCED HEREBY UNDER RULE 144(k)
UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION), OFFER, RESELL OR
OTHERWISE TRANSFER SUCH CAPITAL SECURITIES EXCEPT (A) TO DOMINION RESOURCES,
INC. OR A SUBSIDIARY THEREOF, (B) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT,(C) TO A QUALIFIED INSTITUTIONAL BUYER IN
COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (D) TO AN INSTITUTIONAL
ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE CHASE
MANHATTAN BANK, AS PROPERTY TRUSTEE, A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF SUCH
CAPITAL SECURITIES (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM SUCH TRUSTEE),
(E) OUTSIDE THE UNITED STATES IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES
ACT OR (F) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER
THE SECURITIES ACT (IF AVAILABLE) AND (G) IN EACH CASE, IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES OR ANY OTHER
APPLICABLE JURISDICTION, AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO
WHOM THE CAPITAL SECURITIES EVIDENCED HEREBY ARE TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IF THE PROPOSED TRANSFEREE IS AN
INSTITUTIONAL ACCREDITED INVESTOR OR A TRANSFEREE TAKING DELIVERY IN THE FORM OF
BENEFICIAL INTERESTS IN A GLOBAL SECURITY OTHER THAN THE SECURITY ON WHICH THIS
LEGEND IS ATTACHED, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE
CHASE MANHATTAN BANK, AS PROPERTY TRUSTEE, SUCH CERTIFICATIONS OR OTHER
INFORMATION AS DOMINION RESOURCES, INC. MAY REASONABLY REQUIRE TO CONFIRM THAT
SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION
NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THIS LEGEND
WILL BE REMOVED AFTER THE EXPIRATION OF (I) WITH RESPECT TO CAPITAL SECURITIES
INITIALLY RESOLD IN RELIANCE ON REGULATION S, THE RESTRICTED PERIOD OR (II) WITH
RESPECT TO CAPITAL SECURITIES INITIALLY RESOLD TO INSTITUTIONAL ACCREDITED
INVESTORS OR QUALIFIED INSTITUTIONAL BUYERS, THE HOLDING PERIOD APPLICABLE TO
SALES OF THE CAPITAL SECURITIES EVIDENCED HEREBY UNDER RULE 144(k) UNDER THE
SECURITIES ACT OR, IN ANY CASE, SUCH EARLIER TIME AS A TRANSFER OF SUCH CAPITAL
SECURITIES IS MADE PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "RESTRICTED
PERIOD," "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY
REGULATION S UNDER THE SECURITIES ACT.
THE CAPITAL SECURITIES EVIDENCED HEREBY WILL BE ISSUED, AND MAY BE
TRANSFERRED, ONLY IN BLOCKS HAVING A LIQUIDATION AMOUNT OF NOT LESS THAN
$100,000 (100 CAPITAL SECURITIES). ANY TRANSFER, SALE OR OTHER DISPOSITION OF
SUCH CAPITAL SECURITIES IN A BLOCK HAVING A LIQUIDATION AMOUNT OF LESS THAN
$100,000 SHALL BE DEEMED TO BE VOID AND OF NO LEGAL EFFECT WHATSOEVER. ANY SUCH
TRANSFEREE SHALL BE DEEMED NOT TO BE THE HOLDER OF SUCH CAPITAL SECURITIES FOR
ANY PURPOSE, INCLUDING BUT NOT LIMITED TO THE RECEIPT OF DISTRIBUTIONS ON SUCH
CAPITAL SECURITIES, AND
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SUCH TRANSFEREE SHALL BE DEEMED TO HAVE NO INTEREST WHATSOEVER IN SUCH CAPITAL
SECURITIES.
BY ITS ACCEPTANCE OF THE CAPITAL SECURITIES EVIDENCED HEREBY OR A
BENEFICIAL INTEREST IN SUCH CAPITAL SECURITIES, THE HOLDER OF, AND ANY PERSON
THAT ACQUIRES A BENEFICIAL INTEREST IN, SUCH CAPITAL SECURITIES AGREE TO BE
BOUND BY THE PROVISIONS OF THE CAPITAL SECURITIES EXCHANGE AND REGISTRATION
RIGHTS AGREEMENT, THE GUARANTEE EXCHANGE AND REGISTRATION RIGHTS AGREEMENT AND
THE DEBENTURE EXCHANGE AND REGISTRATION RIGHTS AGREEMENT, EACH DATED AS OF
DECEMBER 8, 1997.
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<PAGE>
CERTIFICATE NUMBER NUMBER OF CAPITAL SECURITIES
CUSIP NO. __________
CERTIFICATE EVIDENCING CAPITAL SECURITIES
OF
DOMINION RESOURCES CAPITAL TRUST I
7.83% CAPITAL SECURITIES,
(LIQUIDATION AMOUNT $1,000 PER CAPITAL SECURITY)
Dominion Resources Capital Trust I, a statutory business trust created
under the laws of the State of Delaware (the "Trust"), hereby certifies that
Cede & Co. (the "Holder") is the registered owner of the number of Capital
Securities of the Trust specified in Schedule I hereto representing an undivided
beneficial interest in the assets of the Trust and designated the Dominion
Resources Capital Trust I 7.83% Capital Securities (liquidation amount $1,000
per Capital Security) (the "Capital Securities"). The Capital Securities are
transferable on the books and records of the Trust, in person or by a duly
authorized attorney, upon surrender of this certificate duly endorsed and in
proper form for transfer as provided in Section 5.4 of the Trust Agreement (as
defined below). The designations, rights, privileges, restrictions, preferences
and other terms and provisions of the Capital Securities are set forth in, and
this certificate and the Capital Securities represented hereby are issued and
shall in all respects be subject to the terms and provisions of, the Amended and
Restated Trust Agreement of the Trust dated as of December 8, 1997, as the same
may be amended from time to time (the "Trust Agreement"), including the
designation of the terms of Capital Securities as set forth therein. The Holder
is entitled to the benefits of the Capital Securities Guarantee Agreement
entered into by Dominion Resources, Inc., a Virginia corporation, and The Chase
Manhattan Bank, as guarantee trustee, dated as of December 8, 1997 (the
"Guarantee"), to the extent provided therein. The Depositor will furnish a copy
of the Trust Agreement and the Guarantee to the Holder without charge upon
written request to the Trust at its principal place of business or registered
office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder. By its acceptance of
this certificate representing Capital Securities or a beneficial
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interest in such Capital Securities, the owner of, and any person that acquires
a beneficial interest in, such Capital Securities agrees to treat the Debentures
described in the Trust Agreement as indebtedness and the Capital Securities as
evidence of indirect beneficial ownership in such indebtedness for tax purposes.
In Witness Whereof, an Administrative Trustee on behalf of the Trust has
executed this certificate as of this ___ day of __________, ____.
DOMINION RESOURCES CAPITAL TRUST I
By: ___________________________________
Name:
Title: Administrative Trustee
PROPERTY TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Capital Securities referred to in the within-mentioned
Trust Agreement.
Dated: ____________, ____
THE CHASE MANHATTAN BANK,
as Property Trustee
By: ___________________________________
Authorized Officer
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<PAGE>
SCHEDULE I
144A GLOBAL SECURITY
--------------------
The initial number of Capital Securities evidenced by this 144A Global
Security is _________.
CHANGES TO NUMBER OF CAPITAL SECURITIES EVIDENCED
BY 144A GLOBAL SECURITY
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
Number of Capital
Securities by
Which this 144A
Global Security
is to be Reduced Remaining Capital
or Increased, and Securities
Reason for Represented by
Reduction or this 144A Notation
Date Increase Global Security Made By
- --------------------------------------------------------------------------------
<S> <C> <C> <C>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
</TABLE>
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<PAGE>
EXHIBIT C
FORM OF REGULATION S GLOBAL SECURITY
This Capital Security is a Regulation S Global Security within the meaning
of the Trust Agreement hereinafter referred to and is registered in the name of
The Depository Trust Company ("DTC") or a nominee of DTC. This Capital Security
is exchangeable for Capital Securities registered in the name of a person other
than DTC or its nominee only in the limited circumstances described in the Trust
Agreement and no transfer of this Capital Security (other than a transfer of
this Capital Security as a whole by DTC to a nominee of DTC or by a nominee of
DTC to DTC or another nominee of DTC) may be registered except in limited
circumstances.
Unless this Capital Security is presented by an authorized representative
of DTC, a New York Corporation (55 Water Street, New York), to Dominion
Resources Capital Trust I or its agent for registration of transfer, exchange or
payment, and any Capital Security issued is registered in the name of Cede & Co.
or such other name as is requested by an authorized representative of DTC (and
any payment hereon 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 A PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
THE CAPITAL SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD, OR OTHERWISE TRANSFERRED
WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S.
PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS
ACQUISITION HEREOF, EACH HOLDER OF THE CAPITAL SECURITIES EVIDENCED
HEREBY, AND EACH PERSON THAT ACQUIRES A BENEFICIAL INTEREST IN SUCH
CAPITAL SECURITIES, (1) REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT) OR (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED
IN RULE 501 (a)(1),(2),(3) OR (7) UNDER THE SECURITIES ACT)
("INSTITUTIONAL ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S. PERSON
AND IS ACQUIRING THE CAPITAL SECURITIES EVIDENCED HEREBY IN AN
OFFSHORE TRANSACTION, (2) AGREES THAT IT WILL NOT, PRIOR TO THE
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EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF THE CAPITAL
SECURITIES EVIDENCED HEREBY UNDER RULE 144(k) UNDER THE SECURITIES ACT
(OR ANY SUCCESSOR PROVISION), OFFER, RESELL OR OTHERWISE TRANSFER SUCH
CAPITAL SECURITIES EXCEPT (A) TO DOMINION RESOURCES, INC. OR A
SUBSIDIARY THEREOF, (B) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT,(C) TO A QUALIFIED INSTITUTIONAL
BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER,
FURNISHES TO THE CHASE MANHATTAN BANK, AS PROPERTY TRUSTEE, A SIGNED
LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO
THE RESTRICTIONS ON TRANSFER OF SUCH CAPITAL SECURITIES (THE FORM OF
WHICH LETTER CAN BE OBTAINED FROM SUCH TRUSTEE), (E) OUTSIDE THE
UNITED STATES IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT OR
(F) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144
UNDER THE SECURITIES ACT (IF AVAILABLE) AND (G) IN EACH CASE, IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF THE STATES OF THE
UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION, AND (3) AGREES
THAT IT WILL DELIVER TO EACH PERSON TO WHOM THE CAPITAL SECURITIES
EVIDENCED HEREBY ARE TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT
OF THIS LEGEND. IF THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL
ACCREDITED INVESTOR OR A TRANSFEREE TAKING DELIVERY IN THE FORM OF
BENEFICIAL INTERESTS IN A GLOBAL SECURITY OTHER THAN THE SECURITY ON
WHICH THIS LEGEND IS ATTACHED, THE HOLDER MUST, PRIOR TO SUCH
TRANSFER, FURNISH TO THE CHASE MANHATTAN BANK, AS PROPERTY TRUSTEE,
SUCH CERTIFICATIONS OR OTHER INFORMATION AS DOMINION RESOURCES, INC.
MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE
PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THIS LEGEND WILL BE
REMOVED AFTER THE EXPIRATION OF (I) WITH RESPECT TO CAPITAL SECURITIES
INITIALLY RESOLD IN RELIANCE ON REGULATION S, THE RESTRICTED PERIOD OR
(II) WITH RESPECT TO CAPITAL SECURITIES INITIALLY RESOLD TO
INSTITUTIONAL ACCREDITED INVESTORS OR QUALIFIED INSTITUTIONAL BUYERS,
THE HOLDING PERIOD APPLICABLE TO SALES OF THE CAPITAL SECURITIES
EVIDENCED HEREBY UNDER RULE 144(k) UNDER THE SECURITIES ACT OR, IN ANY
CASE, SUCH EARLIER TIME AS A TRANSFER OF SUCH CAPITAL SECURITIES IS
MADE PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION,"
"RESTRICTED PERIOD," "UNITED STATES" AND "U.S. PERSON" HAVE THE
MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
C-2
<PAGE>
THE CAPITAL SECURITIES EVIDENCED HEREBY WILL BE ISSUED, AND MAY BE
TRANSFERRED, ONLY IN BLOCKS HAVING A LIQUIDATION AMOUNT OF NOT LESS
THAN $100,000 (100 CAPITAL SECURITIES). ANY TRANSFER, SALE OR OTHER
DISPOSITION OF SUCH CAPITAL SECURITIES IN A BLOCK HAVING A LIQUIDATION
AMOUNT OF LESS THAN $100,000 SHALL BE DEEMED TO BE VOID AND OF NO
LEGAL EFFECT WHATSOEVER. ANY SUCH TRANSFEREE SHALL BE DEEMED NOT TO BE
THE HOLDER OF SUCH CAPITAL SECURITIES FOR ANY PURPOSE, INCLUDING BUT
NOT LIMITED TO THE RECEIPT OF DISTRIBUTIONS ON SUCH CAPITAL
SECURITIES, AND SUCH TRANSFEREE SHALL BE DEEMED TO HAVE NO INTEREST
WHATSOEVER IN SUCH CAPITAL SECURITIES.
BY ITS ACCEPTANCE OF THE CAPITAL SECURITIES EVIDENCED HEREBY OR A
BENEFICIAL INTEREST IN SUCH CAPITAL SECURITIES, THE HOLDER OF, AND ANY
PERSON THAT ACQUIRES A BENEFICIAL INTEREST IN, SUCH CAPITAL SECURITIES
AGREES TO BE BOUND BY THE PROVISIONS OF THE CAPITAL SECURITIES
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT, THE GUARANTEE EXCHANGE AND
REGISTRATION RIGHTS AGREEMENT AND THE DEBENTURE EXCHANGE AND
REGISTRATION RIGHTS AGREEMENT, EACH DATED AS OF DECEMBER 8, 1997.
C-3
<PAGE>
CERTIFICATE NUMBER NUMBER OF CAPITAL SECURITIES
CUSIP NO. _______
CERTIFICATE EVIDENCING CAPITAL SECURITIES
OF
DOMINION RESOURCES CAPITAL TRUST I
7.83% CAPITAL SECURITIES,
(LIQUIDATION AMOUNT $1,000 PER CAPITAL SECURITY)
Dominion Resources Capital Trust I, a statutory business trust created
under the laws of the State of Delaware (the "Trust"), hereby certifies that
Cede & Co. (the "Holder") is the registered owner of the number of Capital
Securities of the Trust specified in Schedule I hereto representing an undivided
beneficial interest in the assets of the Trust and designated the Dominion
Resources Capital Trust I 7.83% Capital Securities (liquidation amount $1,000
per Capital Security) (the "Capital Securities"). The Capital Securities are
transferable on the books and records of the Trust, in person or by a duly
authorized attorney, upon surrender of this certificate duly endorsed and in
proper form for transfer as provided in Section 5.4 of the Trust Agreement (as
defined below). The designations, rights, privileges, restrictions, preferences
and other terms and provisions of the Capital Securities are set forth in, and
this certificate and the Capital Securities represented hereby are issued and
shall in all respects be subject to the terms and provisions of, the Amended and
Restated Trust Agreement of the Trust dated as of December 8, 1997, as the same
may be amended from time to time (the "Trust Agreement"), including the
designation of the terms of Capital Securities as set forth therein. The Holder
is entitled to the benefits of the Capital Securities Guarantee Agreement
entered into by Dominion Resources, Inc., a Virginia corporation, and The Chase
Manhattan Bank, as guarantee trustee, dated as of December 8, 1997 (the
"Guarantee"), to the extent provided therein. The Depositor will furnish a copy
of the Trust Agreement and the Guarantee to the Holder without charge upon
written request to the Trust at its principal place of business or registered
office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder. By its acceptance of this
certificate representing Capital Securities or a beneficial interest in such
Capital Securities, the owner of, and any person that
C-4
<PAGE>
acquires a beneficial interest in, such Capital Securities agrees to treat the
Debentures described in the Trust Agreement as indebtedness and the Capital
Securities as evidence of indirect beneficial ownership in such indebtedness for
tax purposes.
In Witness Whereof, an Administrative Trustee on behalf of the Trust has
executed this certificate as of this ____ day of ________, ____.
DOMINION RESOURCES CAPITAL TRUST I
By: ___________________________________
Name:
Title: Administrative Trustee
PROPERTY TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Capital Securities referred to in the within-mentioned
Trust Agreement.
Dated: ___________, ____
THE CHASE MANHATTAN BANK,
as Property Trustee
By: ___________________________________
Authorized Officer
C-5
<PAGE>
SCHEDULE I
REGULATION S GLOBAL SECURITY
----------------------------
The initial number of Capital Securities evidenced by this Regulation S
Global Security is ___________.
CHANGES TO NUMBER OF CAPITAL SECURITIES
EVIDENCED BY REGULATION S GLOBAL SECURITY
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
Number of Capital
Securities by
Which this 144A
Global Security Remaining Capital
is to be Reduced Securities
or Increased, and Represented by
Reason for this Regulation S Notation
Date Reduction or Global Security Made By
Increase
- --------------------------------------------------------------------------------
<S> <C> <C> <C>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
</TABLE>
C-6
<PAGE>
EXHIBIT D
FORM OF DEFINITIVE CAPITAL SECURITY CERTIFICATE
THE CAPITAL SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND,
ACCORDINGLY, MAY NOT BE OFFERED, SOLD, OR OTHERWISE TRANSFERRED WITHIN THE
UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS
SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, EACH HOLDER OF
THE CAPITAL SECURITIES EVIDENCED HEREBY, AND EACH PERSON THAT ACQUIRES A
BENEFICIAL INTEREST IN SUCH CAPITAL SECURITIES, (1) REPRESENTS THAT (A) IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT) OR (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501
(a)(1),(2),(3) OR (7) UNDER THE SECURITIES ACT) ("INSTITUTIONAL ACCREDITED
INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THE CAPITAL
SECURITIES EVIDENCED HEREBY IN AN OFFSHORE TRANSACTION, (2) AGREES THAT IT WILL
NOT, PRIOR TO THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF THE
CAPITAL SECURITIES EVIDENCED HEREBY UNDER RULE 144(k) UNDER THE SECURITIES ACT
(OR ANY SUCCESSOR PROVISION), OFFER, RESELL OR OTHERWISE TRANSFER SUCH CAPITAL
SECURITIES EXCEPT (A) TO DOMINION RESOURCES, INC. OR A SUBSIDIARY THEREOF, (B)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (C) TO
A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE
SECURITIES ACT, (D) TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH
TRANSFER, FURNISHES TO THE CHASE MANHATTAN BANK, AS PROPERTY TRUSTEE, A SIGNED
LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF SUCH CAPITAL SECURITIES (THE FORM OF WHICH LETTER
CAN BE OBTAINED FROM SUCH TRUSTEE), (E) OUTSIDE THE UNITED STATES IN COMPLIANCE
WITH RULE 904 UNDER THE SECURITIES ACT OR (F) PURSUANT TO AN EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) AND
(G) IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF THE
STATES OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION, AND (3) AGREES
THAT IT WILL DELIVER TO EACH PERSON TO WHOM THE CAPITAL SECURITIES EVIDENCED
HEREBY ARE TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IF
THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED INVESTOR OR A TRANSFEREE
TAKING DELIVERY IN THE FORM OF BENEFICIAL INTERESTS IN A GLOBAL SECURITY OTHER
THAN THE SECURITY ON WHICH THIS LEGEND IS ATTACHED, THE HOLDER MUST, PRIOR TO
SUCH TRANSFER, FURNISH TO THE CHASE MANHATTAN BANK, AS PROPERTY TRUSTEE, SUCH
CERTIFICATIONS OR OTHER INFORMATION AS DOMINION RESOURCES, INC. MAY REASONABLY
REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION
FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. THIS LEGEND WILL BE
D-1
<PAGE>
REMOVED AFTER THE EXPIRATION OF (I) WITH RESPECT TO CAPITAL SECURITIES INITIALLY
RESOLD IN RELIANCE ON REGULATION S, THE RESTRICTED PERIOD OR (II) WITH RESPECT
TO CAPITAL SECURITIES INITIALLY RESOLD TO INSTITUTIONAL ACCREDITED INVESTORS OR
QUALIFIED INSTITUTIONAL BUYERS, THE HOLDING PERIOD APPLICABLE TO SALES OF THE
CAPITAL SECURITIES EVIDENCED HEREBY UNDER RULE 144(k) UNDER THE SECURITIES ACT
OR, IN ANY CASE, SUCH EARLIER TIME AS A TRANSFER OF SUCH CAPITAL SECURITIES IS
MADE PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "RESTRICTED PERIOD," "UNITED
STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER
THE SECURITIES ACT.
THE CAPITAL SECURITIES EVIDENCED HEREBY WILL BE ISSUED, AND MAY BE TRANSFERRED,
ONLY IN BLOCKS HAVING A LIQUIDATION AMOUNT OF NOT LESS THAN $100,000 (100
CAPITAL SECURITIES). ANY TRANSFER, SALE OR OTHER DISPOSITION OF SUCH CAPITAL
SECURITIES IN A BLOCK HAVING A LIQUIDATION AMOUNT OF LESS THAN $100,000 SHALL BE
DEEMED TO BE VOID AND OF NO LEGAL EFFECT WHATSOEVER. ANY SUCH TRANSFEREE SHALL
BE DEEMED NOT TO BE THE HOLDER OF SUCH CAPITAL SECURITIES FOR ANY PURPOSE,
INCLUDING BUT NOT LIMITED TO THE RECEIPT OF DISTRIBUTIONS ON SUCH CAPITAL
SECURITIES, AND SUCH TRANSFEREE SHALL BE DEEMED TO HAVE NO INTEREST WHATSOEVER
IN SUCH CAPITAL SECURITIES.
BY ITS ACCEPTANCE OF THE CAPITAL SECURITIES EVIDENCED HEREBY OR A BENEFICIAL
INTEREST IN SUCH CAPITAL SECURITIES, THE HOLDER OF, AND ANY PERSON THAT ACQUIRES
A BENEFICIAL INTEREST IN, SUCH CAPITAL SECURITIES AGREE TO BE BOUND BY THE
PROVISIONS OF THE CAPITAL SECURITIES EXCHANGE AND REGISTRATION RIGHTS AGREEMENT,
THE GUARANTEE EXCHANGE AND REGISTRATION RIGHTS AGREEMENT AND THE DEBENTURE
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT, EACH DATED AS OF DECEMBER 8, 1997.
D-2
<PAGE>
CERTIFICATE NUMBER NUMBER OF CAPITAL SECURITIES
CUSIP NO. __________
CERTIFICATE EVIDENCING CAPITAL SECURITIES
OF
DOMINION RESOURCES, INC.
7.83% CAPITAL SECURITIES,
(LIQUIDATION AMOUNT $1,000 PER CAPITAL SECURITY)
Dominion Resources Capital Trust I, a statutory business trust created
under the laws of the State of Delaware (the "Trust"), hereby certifies that
_______________________________ (the "Holder") is the registered owner of
_______________________ (______) Capital Securities of the Trust representing an
undivided beneficial interest in the assets of the Trust and designated the
Dominion Resources Capital Trust I 7.83% Capital Securities (liquidation amount
$1,000 per Capital Security) (the "Capital Securities"). The Capital Securities
are transferable on the books and records of the Trust, in person or by a duly
authorized attorney, upon surrender of this certificate duly endorsed and in
proper form for transfer as provided in Section 5.4 of the Trust Agreement (as
defined below). The designations, rights, privileges, restrictions, preferences
and other terms and provisions of the Capital Securities are set forth in, and
this certificate and the Capital Securities represented hereby are issued and
shall in all respects be subject to the terms and provisions of, the Amended and
Restated Trust Agreement of the Trust dated as of December 8, 1997, as the same
may be amended from time to time (the "Trust Agreement"), including the
designation of the terms of Capital Securities as set forth therein. The Holder
is entitled to the benefits of the Guarantee Agreement entered into by Dominion
Resources, Inc., a Virginia corporation, and The Chase Manhattan Bank, as
guarantee trustee, dated as of December 8, 1997 (the "Guarantee"), to the extent
provided therein. The Depositor will furnish a copy of the Trust Agreement and
the Guarantee to the Holder without charge upon written request to the Trust at
its principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
D-3
<PAGE>
By its acceptance of this certificate representing Capital Securities or a
beneficial interest in such Capital Securities, the owner of, and any person
that acquires a beneficial interest in, such Capital Securities agrees to treat
the Debentures described in the Trust Agreement as indebtedness and the Capital
Securities as evidence of indirect beneficial ownership in such indebtedness for
tax purposes.
In Witness Whereof, an Administrative Trustee on behalf of the Trust has
executed this certificate as of this ___ day of ___________, ____.
DOMINION RESOURCES CAPITAL TRUST I
By: ___________________________________
Name:
Title: Administrative Trustee
PROPERTY TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Capital Securities referred to in the within-mentioned
Trust Agreement.
Dated: _____________, ____
THE CHASE MANHATTAN BANK,
as Property Trustee
By: ___________________________________
Authorized Officer
D-4
<PAGE>
FORM OF ASSIGNMENT
For value received ________________ hereby sell(s), assign(s) and
transfer(s) unto_____________________________________________
_________________________________________________________________ (Please
insert social security or other taxpayer identification number of assignee.)
the within security and hereby irrevocably constitutes and appoints
_________________________ attorney to transfer the said security on the books of
the Trust, with full power of substitution in the premises.
In connection with any transfer of the within security occurring prior to
such date as restrictions on the transfer of such security imposed by the
Securities Act of 1933, as amended (the "Securities Act"), and the rules and
regulations thereunder shall be terminated in accordance with the Trust
Agreement, the undersigned confirms that such security is being transferred:
[_] To Dominion Resources, Inc. or a subsidiary thereof; or
[_] Pursuant to an effective registration statement under the securities
Act; or
[_] Pursuant to and in compliance with Rule 144A under the Securities
Act;* or
[_] To an Institutional Accredited Investor pursuant to and in compliance
with the Securities Act; or
[_] Pursuant to and in compliance with Regulation S under the Securities
Act;* or
[_] Pursuant to and in compliance with Rule 144 under the Securities Act;
and unless the box below is checked, the undersigned confirms that such security
is not being transferred to an "affiliate" of the Trust as defined in Rule 144
under the Securities Act (an "Affiliate"):
[_] The transferee is an Affiliate of the Trust.
*If the transferee is taking delivery in the form of a beneficial interest in
the relevant Global Security, the undersigned hereby also
D-5
<PAGE>
delivers the applicable certificate in the form of Exhibit G or H to the Trust
Agreement referred to on the face of this Certificate.
Dated: ___________________
________________________________________
________________________________________
Signature(s)
Signature(s) must be guaranteed by a commercial bank or
trust company or a member firm of a major stock
exchange.
________________________________________
Signature Guarantee
NOTICE: The above signatures of the holder(s) hereof must correspond with the
name as written upon the face of this Security in every particular, without
alteration or enlargement or any change whatever.
D-6
<PAGE>
EXHIBIT E
CERTIFICATE NUMBER NUMBER OF COMMON SECURITIES
CERTIFICATE EVIDENCING COMMON SECURITIES
OF
DOMINION RESOURCES CAPITAL TRUST I
7.83% COMMON SECURITIES
(LIQUIDATION AMOUNT $1,000 PER COMMON SECURITY)
Dominion Resources Capital Trust I, a statutory business trust created
under the laws of the State of Delaware (the "Trust"), hereby certifies that
Dominion Resources, Inc. a Virginia corporation, (the "Holder") is the
registered owner of ______________ (_______) Common Securities of the Trust
representing an undivided beneficial interest in the assets of the Trust and
designated the Common Securities (liquidation amount $1,000 per Common Security)
(the "Common Securities"). The designations, rights, privileges, restrictions,
preferences and other terms and provisions of the Common Securities are set
forth in, and this certificate and the Common Securities represented hereby are
issued and shall in all respects be subject to the terms and provisions of, the
Amended and Restated Trust Agreement of the Trust dated as of December 8, 1997,
as the same may be amended from time to time (the "Trust Agreement"), including
the designation of the terms of the Common Securities as set forth therein. The
Trust will furnish a copy of the Trust Agreement to the Holder without charge
upon written request to the Trust at its principal place of business or
registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
By its acceptance of this certificate representing Common Securities or a
beneficial interest in such Common Securities, the owner of, and any person that
acquires a beneficial interest in, such Common Securities agrees to treat the
Debentures described in the Trust Agreement as indebtedness and the Common
Securities as evidence of indirect beneficial ownership in such indebtedness for
tax purposes.
E-1
<PAGE>
In Witness Whereof, an Administrative Trustee on behalf of the Trust has
executed this certificate as of this ___ day of _________, ____.
DOMINION RESOURCES CAPITAL TRUST I
By: ___________________________________
Name:
Title: Administrative Trustee
PROPERTY TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Common Securities referred to in the within-mentioned
Trust Agreement.
Dated: _____________, ____
THE CHASE MANHATTAN BANK,
as Property Trustee
By: ___________________________________
Authorized Officer
E-2
<PAGE>
EXHIBIT F
FORM OF LETTER TO BE DELIVERED
BY INSTITUTIONAL ACCREDITED INVESTORS
Dominion Resources, Inc.
901 E. Byrd Street
Richmond, VA 23219
Dominion Resources Capital Trust I
901 E. Byrd Street
Richmond, VA 23219
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Dear Sirs and Mesdames:
We understand that the 7.83% Capital Securities, liquidation preference
$1,000 per Capital Security (the "Capital Securities"), of Dominion Resources
Capital Trust I, a Delaware business trust (including the guarantee (the
"Guarantee") of Dominion Resources, Inc. ("Dominion Resources") executed in
connection therewith), and the 7.83% Junior Subordinated Deferrable Interest
Debentures of Dominion Resources (the "Debentures," and, together with the
Capital Securities and the Guarantee, the "Securities") are being offered in a
transaction not involving any public offering within the United States within
the meaning of the Securities Act of 1933, as amended (the "Securities Act"),
and that the Securities have not been registered under the Securities Act, and
we agree, on our own behalf and on behalf of each account for which we acquire
any Capital Securities, that if, prior to the expiration of the holding period
applicable to sales of any Security under Rule 144(k) under the Securities Act,
we decide to offer, resell or otherwise transfer such Security, such Security
may be offered, resold or otherwise transferred only (i) to Dominion Resources
or a subsidiary thereof, (ii) pursuant to an effective registration statement
=under the Securities Act, (iii) to a person who is a "qualified institutional
buyer" (as defined in Rule 144A under the Securities Act) in compliance with
Rule 144A, (iv) to an Institutional Accredited Investor (as defined below) that,
prior to such transfer, furnishes to the Property Trustee a signed letter in the
form hereof, and such other opinions and certifications that the Property
Trustee or Dominion Resources may request, (v) outside the
F-1
<PAGE>
United States in compliance with Rule 904 under the Securities Act or (vi)
pursuant to the exemption from registration provided by Rule 144 under the
Securities Act (if available) and (vii) in each case, in accordance with any
applicable securities laws of the States of the United States or any other
applicable jurisdiction and in accordance with the legends set forth on the
Capital Securities and the Debentures. We further agree to provide any person
purchasing any of the Capital Securities or Debentures from us a notice advising
such purchaser that resales of such securities are restricted as stated herein.
We understand that any Capital Securities will bear a legend reflecting the
substance of this paragraph.
We confirm that:
(i) we are an "accredited investor" within the meaning of Rule
501(a)(1), (2) or (3) under the Securities Act or an entity in which all of
the equity owners are accredited investors within the meaning of Rule
501(a)(1), (2) and (3) under the Securities Act (an "Institutional
Accredited Investor");
(ii) (A) any purchase of Capital Securities by us will be for
our own account or for the account of one or more other Institutional
Accredited Investors or as fiduciary for the account of one or more trusts,
each of which is an "accredited investor" within the meaning of Rule
501(a)(7) under the Securities Act and for each of which we exercise sole
investment discretion or (B) we are a "bank," within the meaning of Section
3(a)(2) of the Securities Act, or a "savings and loan association" or other
institution described in Section 3(a)(5)(A) of the Securities Act that is
acquiring Capital Securities as fiduciary for the account of one or more
institutions for which we exercise sole investment discretion;
(iii) in the event that we purchase any Capital Securities, we
will acquire Capital Securities having a minimum purchase price of not
less than $100,000 for our own account or for any separate account for
which we are acting;
(iv) we have such knowledge and experience in financial and
business matters that we are capable of evaluating the merits and risks of
an investment in the Capital Securities;
(v) we are not acquiring Capital Securities with a view to
resale or distribution thereof or with any present intention of offering or
selling Capital Securities, except as
F-2
<PAGE>
permitted above; provided that the disposition of our property and property
of any accounts for which we are acting as fiduciary shall remain at all
times within our control; and
(vi) we have had access to such financial and other information
and have been afforded the opportunity to ask such questions of
representatives of Dominion Resources and receive answers thereto, as we
deem necessary in connection with our decision to purchase Capital
Securities.
We acknowledge that you and others will rely upon our confirmations,
acknowledgments and agreements set forth herein, and we agree to notify you
promptly in writing if any of our representations or warranties herein ceases to
be accurate and complete.
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
INTERNAL LAWS OF THE STATE OF NEW YORK.
(Name of Purchaser)
________________________________________
Name:
Title:
Address:
F-3
<PAGE>
EXHIBIT G
FORM OF TRANSFER CERTIFICATE--
144A GLOBAL SECURITY OR INSTITUTIONAL ACCREDITED
INVESTORS DEFINITIVE TO REGULATION S GLOBAL SECURITY
The Chase Manhattan Bank
450 West 33rd Street
New York, New York 10001
Attention: Corporate Trustee Administration
DOMINION RESOURCES CAPITAL TRUST I
----------------------------------
PRIVATE CAPITAL SECURITIES
--------------------------
Reference is hereby made to the Amended and Restated Trust Agreement, dated
as of December 8, 1997 (the "Trust Agreement"), among Dominion Resources, Inc.,
The Chase Manhattan Bank, as Property Trustee, Chase Manhattan Bank Delaware, as
Delaware Trustee, the Administrative Trustees named therein and the holders,
from time to time, of undivided beneficial interests in the assets of Dominion
Resources Capital Trust I. Capitalized terms used but not defined herein shall
have the meanings given to them in the Trust Agreement.
This letter relates to _________________ Private Capital Securities which
are evidenced by (i) a 144A Global Security (CUSIP No. _______) and held
indirectly with the Clearing Agency or (ii) a Definitive Capital Security
Certificate held directly, in either case, in the name of [insert name of
transferor] (the "Transferor").
The Transferor has requested a transfer of such beneficial interest in such
Private Capital Securities to a Person that will take delivery thereof in a
transaction effected pursuant to and in accordance with Rule 904 under the
United States Securities Act of 1933, as amended (the "Securities Act"), and,
accordingly, the Transferor does hereby further certify that the Transferor's
interest in such Private Capital Securities is being transferred in accordance
with the transfer restrictions set forth in the Trust Agreement and that:
The offer of such Private Capital Securities was not made to a person in
the United States;
(A) either:
G-1
<PAGE>
(i) at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any person acting on its
behalf reasonably believed that the transferee was outside the United
States, or
(ii) the transaction was executed in, or through the facilities
of a designated offshore securities market and neither the Transferor nor
any person acting on its behalf knows that the transaction was pre-arranged
with a buyer in the United States;
(B) no directed selling efforts have been made in contravention of
the requirements of 904(b) of Regulation S, as applicable;
(C) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
(D) we have advised the transferee of the transfer restrictions
applicable to such Private Capital Securities.
You, the Trust and the Initial Purchasers are entitled to rely upon this
letter and are irrevocably authorized to produce this letter or a copy hereof to
any interested party in any administrative or legal proceeding or official
inquiry with respect to the matters covered hereby. Terms used in this
certificate and not otherwise defined herein or in the Trust Agreement have the
meanings set forth in Regulation S under the Securities Act.
Dated:__________________
[Insert Name of Transferor]
By: ___________________________________
Name:
Title:
(If the registered owner is a corporation, partnership
or fiduciary, the title of the Person signing on behalf
of such registered owner must be stated.)
G-2
<PAGE>
EXHIBIT H
FORM OF TRANSFER CERTIFICATE
REGULATION S GLOBAL SECURITY OR INSTITUTIONAL
ACCREDITED INVESTORS DEFINITIVE TO 144A GLOBAL SECURITY
The Chase Manhattan Bank
450 West 33rd Street
New York, New York 10001
Attention: Corporate Trustee Administration
DOMINION RESOURCES CAPITAL TRUST I
----------------------------------
PRIVATE CAPITAL SECURITIES
--------------------------
Reference is hereby made to the Amended and Restated Trust Agreement, dated
as of December 8, 1997 (the "Trust Agreement"), among Dominion Resources, Inc.,
The Chase Manhattan Bank, as Property Trustee, Chase Manhattan Bank Delaware, as
Delaware Trustee, the Administrative Trustees named therein and the holders,
from time to time, of undivided beneficial interests in the assets of Dominion
Resources Capital Trust I. Capitalized terms used but not defined herein shall
have the meanings given to them in the Trust Agreement.
This letter relates to _________________ Private Capital Securities which
are evidenced by (i) a Regulation S Global Security (CUSIP No. ___________) and
held with the Clearing Agency indirectly or (ii) a Definitive Capital Security
Certificate held directly, in either case in the name of [insert name of
transferor] (the "Transferor").
The Transferor has requested a transfer of such beneficial interest in such
Private Capital Securities to a Person that will take delivery thereof in a
transaction effected pursuant to and in accordance with Rule 144A under the
United States Securities Act of 1933, as amended (the "Securities Act"), and,
accordingly, the Transferor does hereby certify that (i) the Transferor's
interest in such Private Capital Securities is being transferred in accordance
with the transfer restrictions set forth in the Trust Agreement; and (ii) the
transferee is a person who the Transferor reasonably believes is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act,
purchasing for its own account or the account of a qualified institutional buyer
in a transaction meeting the requirements of Rule 144A, in accordance with all
H-1
<PAGE>
applicable securities laws of the states of the United States and other
jurisdictions.
You, the Trust and the Initial Purchasers are entitled to rely upon this
letter and are irrevocably authorized to produce this letter or a copy hereof to
any interested party in any administrative or legal proceeding or official
inquiry with respect to the matters covered hereby.
Dated :__________________________
[Insert Name of Transferor]
By: ___________________________________
Name:
Title:
(If the registered owner is a corporation, partnership
or fiduciary, the title of the Person signing on behalf
of such registered owner must be stated.)
H-2
<PAGE>
EXHIBIT I
FORM OF PRIVATE PLACEMENT LEGEND
THE CAPITAL SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY
NOT BE OFFERED, SOLD, OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO,
OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE
FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, EACH HOLDER OF THE CAPITAL
SECURITIES EVIDENCED HEREBY, AND EACH PERSON THAT ACQUIRES A BENEFICIAL INTEREST
IN SUCH CAPITAL SECURITIES, (1) REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B)
IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501
(a)(1),(2),(3) OR (7) UNDER THE SECURITIES ACT) ("INSTITUTIONAL ACCREDITED
INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THE CAPITAL
SECURITIES EVIDENCED HEREBY IN AN OFFSHORE TRANSACTION, (2) AGREES THAT IT WILL
NOT, PRIOR TO THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF THE
CAPITAL SECURITIES EVIDENCED HEREBY UNDER RULE 144(k) UNDER THE SECURITIES ACT
(OR ANY SUCCESSOR PROVISION), OFFER, RESELL OR OTHERWISE TRANSFER SUCH CAPITAL
SECURITIES EXCEPT (A) TO DOMINION RESOURCES, INC. OR A SUBSIDIARY THEREOF, (B)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (C) TO
A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE
SECURITIES ACT, (D) TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH
TRANSFER, FURNISHES TO THE CHASE MANHATTAN BANK, AS PROPERTY TRUSTEE, A SIGNED
LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF SUCH CAPITAL SECURITIES (THE FORM OF WHICH LETTER
CAN BE OBTAINED FROM SUCH TRUSTEE), (E) OUTSIDE THE UNITED STATES IN COMPLIANCE
WITH RULE 904 UNDER THE SECURITIES ACT OR (F) PURSUANT TO AN EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) AND
(G) IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF THE
STATES OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION, AND (3) AGREES
THAT IT WILL DELIVER TO EACH PERSON TO WHOM THE CAPITAL SECURITIES EVIDENCED
HEREBY ARE TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IF
THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED INVESTOR OR A TRANSFEREE
TAKING DELIVERY IN THE FORM OF BENEFICIAL INTERESTS IN A GLOBAL SECURITY [IF A
GLOBAL CAPITAL SECURITY, INSERT THE FOLLOWING: OTHER THAN THE SECURITY ON WHICH
THIS LEGEND IS ATTACHED], THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO
THE CHASE MANHATTAN BANK, AS PROPERTY TRUSTEE, SUCH CERTIFICATIONS OR OTHER
INFORMATION AS DOMINION RESOURCES, INC. MAY REASONABLY REQUIRE TO CONFIRM THAT
SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION
NOT SUBJECT
I-1
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TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THIS LEGEND WILL BE
REMOVED AFTER THE EXPIRATION OF (I) WITH RESPECT TO CAPITAL SECURITIES INITIALLY
RESOLD IN RELIANCE ON REGULATION S, THE RESTRICTED PERIOD OR (II) WITH RESPECT
TO CAPITAL SECURITIES INITIALLY RESOLD TO INSTITUTIONAL ACCREDITED INVESTORS OR
QUALIFIED INSTITUTIONAL BUYERS, THE HOLDING PERIOD APPLICABLE TO SALES OF THE
CAPITAL SECURITIES EVIDENCED HEREBY UNDER RULE 144(k) UNDER THE SECURITIES ACT
OR, IN ANY CASE, SUCH EARLIER TIME AS A TRANSFER OF SUCH CAPITAL SECURITIES IS
MADE PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "RESTRICTED PERIOD," "UNITED
STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER
THE SECURITIES ACT.
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EXHIBIT J
FORM OF MINIMUM TRANSFER LEGEND
THE CAPITAL SECURITIES EVIDENCED HEREBY WILL BE ISSUED, AND MAY BE TRANSFERRED,
ONLY IN BLOCKS HAVING A LIQUIDATION AMOUNT OF NOT LESS THAN $100,000 (100
CAPITAL SECURITIES). ANY TRANSFER, SALE OR OTHER DISPOSITION OF SUCH CAPITAL
SECURITIES IN A BLOCK HAVING A LIQUIDATION AMOUNT OF LESS THAN $100,000 SHALL BE
DEEMED TO BE VOID AND OF NO LEGAL EFFECT WHATSOEVER. ANY SUCH TRANSFEREE SHALL
BE DEEMED NOT TO BE THE HOLDER OF SUCH CAPITAL SECURITIES FOR ANY PURPOSE,
INCLUDING BUT NOT LIMITED TO THE RECEIPT OF DISTRIBUTIONS ON SUCH CAPITAL
SECURITIES, AND SUCH TRANSFEREE SHALL BE DEEMED TO HAVE NO INTEREST WHATSOEVER
IN SUCH CAPITAL SECURITIES.
[IF CAPITAL SECURITY IS AN EXCHANGE CAPITAL SECURITY, INSERT -
FORM OF ASSIGNMENT
For Value Received, the undersigned assigns and transfers this Capital Security
to:_____________________________________________
(Insert assignee's social security or tax identification number)
_________________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints _____________________________ agent to transfer this
Capital Security Certificate on the books of the Trust. The agent may
substitute another to act for him or her.
Date:
Signature(s):
________________________________________________
________________________________________________
(Sign exactly as your name appears on the other
side of this Capital Security Certificate)
J-1
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NOTICE: THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR
INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT
UNIONS WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM),
PURSUANT TO S.E.C. RULE 17AD-15.
J-2
<PAGE>
EXHIBIT 4.8
CAPITAL SECURITIES GUARANTEE AGREEMENT
THIS CAPITAL SECURITIES GUARANTEE AGREEMENT, dated as of December 8, 1997
(the "Guarantee Agreement"), is executed and delivered by Dominion Resources,
Inc., a Virginia corporation (the "Guarantor"), and The Chase Manhattan Bank, a
New York banking corporation, as trustee (the "Guarantee Trustee"), for the
benefit of the Holders (as defined herein) from time to time of the Capital
Securities (as defined herein) of Dominion Resources Capital Trust I, a Delaware
statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Trust Agreement, dated as of
December 8, 1997 (the "Trust Agreement"), among the Guarantor, as Depositor, the
Property Trustee, the Delaware Trustee, the Administrative Trustees named
therein and the holders, from time to time, of undivided beneficial interests in
the assets of the Issuer, the Issuer is issuing $250,000,000 in aggregate
Liquidation Amount (as defined in the Trust Agreement) of its Capital Securities
(as defined herein) representing preferred undivided beneficial interests in the
assets of the Issuer and having the terms set forth in the Trust Agreement;
WHEREAS, the Capital Securities will be issued by the Issuer and the
proceeds thereof, together with the proceeds from the issuance of the Issuer's
Common Securities (as defined herein), will be used to purchase the Debentures
(as defined in the Trust Agreement) of the Guarantor, which will be deposited
with The Chase Manhattan Bank, as Property Trustee under the Trust Agreement, as
trust assets; and
WHEREAS, as incentive for the Holders to purchase Capital Securities the
Guarantor desires irrevocably and unconditionally to agree, to the extent set
forth herein, to pay to the Holders of the Capital Securities, the Guarantee
Payments (as defined herein) and to make certain other payments on the terms and
conditions set forth herein;
NOW, THEREFORE, in consideration of the purchase by each Holder of Capital
Securities, which purchase the Guarantor hereby agrees shall benefit the
Guarantor, the Guarantor executes and delivers this Guarantee Agreement for the
benefit of the Holders from time to time of the Capital Securities.
<PAGE>
ARTICLE I
DEFINITIONS
1.1 Definitions. As used in this Guarantee Agreement, the terms set forth
-----------
below shall, unless the context otherwise requires, have the following meanings.
Capitalized or otherwise defined terms used but not otherwise defined herein
shall have the meanings assigned to such terms in the Trust Agreement as in
effect on the date hereof.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person; provided, however, that an Affiliate of the
Guarantor shall not be deemed to be an Affiliate of the Issuer. For the
purposes of this definition, "control" when used with respect to any specified
Person means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Board of Directors" means either the board of directors of the
Guarantor or any committee of that board duly authorized to act hereunder.
"Business Days" has the meaning set forth in the Trust Agreement.
"Capital Securities" means the 7.83% Capital Securities (Liquidation
Amount $1,000 per Capital Security) of the Issuer referred to in the Trust
Agreement, the certificates of which initially bear legends indicating that they
have not been registered under the Securities Act and restricting transfers
thereof to the extent required by the provisions of the Trust Agreement.
"Common Securities" means the 7.83% Common Securities (Liquidation
Amount $1,000 per Common Security) of the Issuer referred to in the Trust
Agreement.
"Event of Default" means a default by the Guarantor on any of its
payment or other obligations under this Guarantee Agreement; provided, however,
that, except with respect to a default in payment of any Guarantee Payments, the
Guarantor shall have received notice of default from the Guarantee Trustee or
any Holder (with a copy to the Guarantee Trustee) and shall not have cured such
default within 60 days after receipt of such notice.
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"Guarantee Payments" means the following payments or distributions,
without duplication, with respect to the Capital Securities, to the extent not
paid or made by or on behalf of the Issuer: (i) any accumulated and unpaid
Distributions (as defined in the Trust Agreement) required to be paid on the
Capital Securities, to the extent the Issuer shall have funds legally available
therefor at such time, (ii) the redemption price, including all accrued and
unpaid Distributions to but excluding the date of redemption (the "Redemption
Price") with respect to any Capital Securities called for redemption by the
Issuer, to the extent the Issuer shall have funds legally available therefor at
such time, and (iii) upon a voluntary or involuntary termination, dissolution,
winding-up or liquidation of the Issuer, unless Debentures are distributed to
the Holders in accordance with Article IX of the Trust Agreement, the lesser of
(a) the aggregate of the Liquidation Amount of $1,000 per Capital Security plus
accumulated and unpaid Distributions on the Capital Securities to but excluding
the date of payment, to the extent the Issuer shall have funds legally available
therefor at such time, and (b) the amount of assets of the Issuer remaining
available for distribution to Holders in liquidation of the Issuer (in either
case, the "Liquidation Distribution").
"Guarantee Trustee" means The Chase Manhattan Bank, hereby appointed
as such by the Guarantor, until a Successor Guarantee Trustee has been appointed
and has accepted such appointment pursuant to the terms of this Guarantee
Agreement and thereafter means each such Successor Guarantee Trustee.
"Holder" means any holder, as registered on the books and records of
the Issuer, of any Capital Securities; provided, however, that in determining
whether the holders of the requisite percentage of Capital Securities have given
any request, notice, consent or waiver hereunder, "Holder" shall not include the
Guarantor, the Guarantee Trustee, or any Affiliate of the Guarantor or the
Guarantee Trustee.
"Indenture" means the Indenture dated as of December 1, 1997, between
the Guarantor and The Chase Manhattan Bank, as trustee, as supplemented by the
First Supplemental Indenture dated December 1, 1997, and as may be further
supplemented or amended from time to time.
"Liquidation Amount" means the stated amount of $1,000 per Capital
Security.
"List of Holders" has the meaning specified in Section 2.2(a).
"Majority in Liquidation Amount of the Capital Securities" means,
except as provided by the Trust Indenture Act,
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a vote by the Holder(s) of more than 50% of the Liquidation Amount of all then
outstanding Capital Securities issued by the Issuer.
"Officers' Certificate" means, with respect to the Guarantor, a
certificate signed by the Chairman of the Board, the Chief Executive Officer,
the President, or any Vice President (whether or not designated by a number or a
word or words added before or after the title Vice President), and by the
Treasurer, an Assistant Treasurer, the Controller, the Corporate Secretary or an
Assistant Corporate Secretary of such Person, and delivered to the Guarantee
Trustee. Any Officers' Certificate delivered with respect to compliance with a
condition or covenant provided for in this Guarantee Agreement (other than
pursuant to Section 2.4) shall include:
(a) a statement that each officer signing the Officers' Certificate
has read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers'
Certificate;
(c) a statement that each officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"Person" means any individual, corporation, estate, partnership, joint
venture, association, joint stock company, limited liability company, trust,
unincorporated association, or government or any agency or political subdivision
thereof, or any other entity of whatever nature.
"Responsible Officer" means, with respect to the Guarantee Trustee,
any Senior Vice President, any Vice President, any Assistant Vice President, the
Corporate Secretary, any Assistant Corporate Secretary, the Treasurer, any
Assistant Treasurer, any Senior Trust Officer, any Trust Officer or Assistant
Trust Officer or any other officer of the corporate trust department of the
Guarantee Trustee and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of that
officer's knowledge of an familiarity with the particular subject.
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"Senior Indebtedness of the Guarantor," for purposes of this Guarantee
Agreement, has the meaning set forth in Section 6.1 hereof.
"Shelf Registration" and "New Guarantee Agreement" each have the
respective meanings set forth in the Guarantee Exchange and Registration Rights
Agreement by and among the Issuer, the Guarantor, and the Purchasers named
therein.
"Successor Guarantee Trustee" means a successor Guarantee Trustee
possessing the qualifications to act as Guarantee Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
ARTICLE II
TRUST INDENTURE
2.1 Trust Indenture Act; Application. This Guarantee Agreement is not
--------------------------------
subject to the provisions of the Trust Indenture Act, but the Guarantee
Agreement is intended to comply with the requirements of Sections 310 to 317,
inclusive, of the Trust Indenture Act; provided, that in the event that the
Capital Securities shall be offered or sold in connection with an effective
Shelf Registration, then this Guarantee Agreement shall be qualified under and
become subject to the provisions of the Trust Indenture Act, and in such case,
the Guarantor and the Guarantee Trustee shall take such actions as may be
reasonably necessary to qualify this Guarantee Agreement under the Trust
Indenture Act, which actions, in the case of the Guarantee Trustee, shall be
limited to providing a form T-1 for filing with the SEC and consenting to any
amendments to this Guarantee Agreement in connection therewith. If and to the
extent that any provision of this Guarantee Agreement limits, qualifies or
conflicts with the duties imposed by Sections 310 to 317, inclusive, of the
Trust Indenture Act, such imposed duties shall control.
2.2 List of Holders.
---------------
(a) The Guarantor shall furnish or cause to be furnished to the
Guarantee Trustee (i) semiannually, not more than five days after May 15 and
November 15 of each year, beginning with May 15, 1998, a list, in such form as
the Guarantee Trustee may reasonably require, of the names and addresses of the
Holders ("List of Holders") as of a date not more than 15 days prior to the
delivery thereof, and (ii) at such other times as the Guarantee Trustee may
request in writing, within 30 days after the receipt by the Guarantor of any
such request, a List of Holders as of a date not
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more than 15 days prior to the time such list is furnished, in each case to the
extent such information is in the possession or control of the Guarantor and is
not identical to a previously supplied list of Holders or has not otherwise been
received by the Guarantee Trustee in its capacity as such. The Guarantee Trustee
may destroy any List of Holders previously given to it on receipt of a new List
of Holders.
(b) The Guarantee Trustee shall comply with the obligations imposed
under Section 311(a), Section 311(b) and Section 312(b) of the Trust Indenture
Act as if it were subject to the Trust Indenture Act.
2.3 Reports by the Guarantee Trustee. Not later than 60 days after
--------------------------------
September 15 of each year, commencing September 15, 1998, the Guarantee Trustee
shall provide to the Holders such reports, dated as of such September 15, as are
required by Section 313(a) of the Trust Indenture Act, if any, in the form and
in the manner provided by Section 313 of the Trust Indenture Act. The Guarantee
Trustee shall also comply with the requirements of Section 313(d) of the Trust
Indenture Act.
2.4 Periodic Reports to the Guarantee Trustee. The Guarantor shall
-----------------------------------------
provide to the Guarantee Trustee and the Holders such documents, reports and
information, if any, as required by Section 314(a) of the Trust Indenture Act
and the compliance certificate required by Section 314(a)(4) of the Trust
Indenture Act, in the form, in the manner and at the times required by Section
314 of the Trust Indenture Act, such compliance certificate to be delivered
annually on or before May 1 in each year beginning in 1998.
2.5 Evidence of Compliance with Conditions Precedent. The Guarantor shall
------------------------------------------------
provide to the Guarantee Trustee such evidence of compliance with such
conditions precedent, if any, provided for in this Guarantee Agreement that
relate to any of the matters set forth in Section 314(c) of the Trust Indenture
Act, regardless of whether those provisions actually apply to this Guarantee
Agreement. Any certificate or opinion given by an officer of the type mentioned
in Section 314(c)(1) of the Trust Indenture Act may be given in the form of an
Officers' Certificate.
2.6 Events of Default; Waiver. The Holders of a Majority in Liquidation
-------------------------
Amount of the Capital Securities may, by vote, on behalf of the Holders, waive
any past Event of Default and its consequences. Upon such waiver, any such
Event of Default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this
Guarantee Agreement, but no such waiver shall extend to any subsequent or other
default or Event of Default or impair any right consequent thereto.
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2.7 Event of Default; Notice.
------------------------
(a) The Guarantee Trustee shall, within 10 Business Days after the
occurrence of any Event of Default actually known to a Responsible Officer of
the Guarantee Trustee, transmit by mail, first-class postage prepaid, to the
Holders, notices of all Events of Default known to the Guarantee Trustee, unless
such defaults have been cured or waived before the giving of such notice,
provided that, except in the case of a default in the payment of a Guarantee
Payment, the Guarantee Trustee shall be protected in withholding such notice if
and so long as the Board of Directors, the executive committee or a trust
committee of directors and/or Responsible Officers of the Guarantee Trustee in
good faith determines that the withholding of such notice is in the interests of
the Holders.
(b) The Guarantee Trustee shall not be deemed to have knowledge of any
Event of Default unless the Guarantee Trustee shall have received written notice
from the Guarantor or a Holder or a Responsible Officer charged with the
administration of this Guarantee Agreement shall have obtained written notice
from the Guarantor or a Holder of such Event of Default.
2.8 Conflicting Interests. The Trust Agreement shall be deemed to be
---------------------
specifically described in this Guarantee Agreement for the purposes of clause
(i) of the first proviso contained in Section 310(b) of the Trust Indenture Act
as if such Section 310(b) applied to this Guarantee Agreement.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
3.1 Powers and Duties of the Guarantee Trustee.
------------------------------------------
(a) This Guarantee Agreement shall be held by the Guarantee Trustee
for the benefit of the Holders, and the Guarantee Trustee shall not transfer
this Guarantee Agreement to any Person except a Holder exercising his or her
rights pursuant to Section 5.4(iv) or to a Successor Guarantee Trustee on
acceptance by such Successor Guarantee Trustee of its appointment to act as
Successor Guarantee Trustee. The right, title and interest of the Guarantee
Trustee shall automatically vest in any Successor Guarantee Trustee, upon
acceptance by such Successor Guarantee Trustee of its appointment hereunder, and
such vesting in the Successor Guarantee Trustee and cessation of right, title
and interest with respect to the Guarantee Trustee shall be effective whether or
not conveyancing documents have been executed and delivered pursuant to the
appointment of such Successor Guarantee Trustee. If and when
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required by the Guarantee Exchange and Registration Rights Agreement, the
Guarantee Trustee shall enter into the Exchange Guarantee Agreement and shall
effect the exchange contemplated therein.
(b) If an Event of Default actually known to a Responsible Officer of
the Guarantee Trustee has occurred and is continuing, the Guarantee Trustee
shall enforce this Guarantee Agreement for the benefit of the Holders, which
actions may include, without limitation (but subject to Section 5.4 hereof), (a)
recovering judgment, in its own name and as trustee of an express trust, against
the Guarantor for the whole amount of any Guarantee Payments remaining unpaid
and (b) filing such proofs of claim and other papers or documents as may be
necessary or advisable in order to have its claims and those of the Holders of
the Capital Securities allowed in any judicial proceedings relative to the
Guarantor, its creditors or its property.
(c) The Guarantee Trustee, before the occurrence of any Event of
Default and after the curing or waiving of all Events of Default that may have
occurred, shall undertake to perform only such duties as are specifically set
forth in this Guarantee Agreement, and no implied covenants shall be read into
this Guarantee Agreement against the Guarantee Trustee. In case an Event of
Default has occurred (that has not been cured or waived pursuant to Section
2.6), the Guarantee Trustee shall exercise such of the rights and powers vested
in it by this Guarantee Agreement, and use the same degree of care and skill in
its exercise thereof, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(d) No provision of this Guarantee Agreement shall be construed to
relieve the Guarantee Trustee from liability for its own negligent action, its
own negligent failure to act or its own willful misconduct, except that:
(i) prior to the occurrence of any Event of Default and after the
curing or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Guarantee Trustee shall
be determined solely by the express provisions of this Guarantee
Agreement, and the Guarantee Trustee shall not be liable except for
the performance of such duties and obligations as are specifically set
forth in this Guarantee Agreement; and
(B) in the absence of bad faith on the part of the Guarantee
Trustee, the Guarantee Trustee may conclusively rely, as to the truth
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of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Guarantee
Trustee and conforming to the requirements of this Guarantee
Agreement; but in the case of any such certificates or opinions that
by any provision hereof or of the Trust Indenture Act (were it
applicable hereto) are specifically required to be furnished to the
Guarantee Trustee, the Guarantee Trustee shall be under a duty to
examine the same to determine whether or not they conform to the
requirements of this Guarantee Agreement;
(ii) the Guarantee Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Guarantee
Trustee, unless it shall be proved that the Guarantee Trustee was negligent
in ascertaining the pertinent facts upon which such judgment was made;
(iii) the Guarantee Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in accordance
with the direction of the Holders of not less than a Majority in
Liquidation Amount of the Capital Securities relating to the time, method
and place of conducting any proceeding for any remedy available to the
Guarantee Trustee, or exercising any trust or power conferred upon the
Guarantee Trustee under this Guarantee Agreement; and
(iv) no provision of this Guarantee Agreement shall require the
Guarantee Trustee to expend or risk its own funds or otherwise incur
financial liability in the performance of any of its duties hereunder, or
in the exercise of any of its rights or powers, if the Guarantee Trustee
shall have reasonable grounds for believing that the repayment of such
funds or adequate indemnity against such risk or liability is not
reasonably assured to it under the terms of this Guarantee Agreement.
3.2 Certain Rights of Guarantee Trustee.
-----------------------------------
(a) Subject to the provisions of Section 3.1:
(i) The Guarantee Trustee may rely and shall be fully protected
in acting or refraining from acting in good faith upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, appraisal, bond, debenture, note, other
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evidence of indebtedness or other paper or document reasonably believed by
it to be genuine and to have been signed, sent or presented by the proper
party or parties.
(ii) Any direction or act of the Guarantor contemplated by this
Guarantee Agreement shall be sufficiently evidenced by an Officers'
Certificate unless otherwise prescribed herein.
(iii) Whenever, in the administration of this Guarantee
Agreement, the Guarantee Trustee shall deem it desirable that a matter be
proved or established before taking, suffering or omitting to take any
action hereunder, the Guarantee Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith on its part,
request and rely upon an Officers' Certificate which, upon receipt of such
request from the Guarantee Trustee, shall be promptly delivered by the
Guarantor.
(iv) The Guarantee Trustee may consult with legal counsel of
its own selection, and the advice or opinion of such legal counsel with
respect to legal matters shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted to be taken
by it hereunder in good faith and in reliance thereon and in accordance
with such advice or opinion. Such legal counsel may be legal counsel to the
Guarantor or any of its Affiliates and may be one of its employees. The
Guarantee Trustee shall have the right at any time to seek instructions
concerning the administration of this Guarantee Agreement from any court of
competent jurisdiction.
(v) The Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Guarantee
Agreement at the request or direction of any Holder, unless such Holder
shall have offered to the Guarantee Trustee such adequate security or
indemnity against the costs, expenses (including attorneys' fees and
expenses) and liabilities that might be incurred by it in complying with
such request or direction, including such reasonable advances as may be
requested by the Guarantee Trustee; provided that nothing contained in this
Section 3.2(a)(v) shall be taken to relieve the Guarantee Trustee, upon the
occurrence of an Event of Default, of its obligation to exercise the rights
and powers vested in it by this Guarantee Agreement.
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(vi) The Guarantee Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, appraisal, bond, debenture, note, other evidence
of indebtedness or other paper or document, but the Guarantee Trustee, in
its discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit.
(vii) The Guarantee Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through its agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed by it hereunder; provided, however, that the Guarantee Trustee
shall be responsible for its own negligence with respect to the selection
of any such agent or attorney appointed by it hereunder.
(viii) Whenever in the administration of this Guarantee Agreement
the Guarantee Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action
hereunder, the Guarantee Trustee (A) may request instructions from the
Holders, (B) may refrain from enforcing such remedy or right or taking such
other action until such instructions are received, and (C) shall be
protected in acting in accordance with such instructions.
(ix) Any action taken by the Guarantee Trustee or its agents
hereunder shall bind the Holders, and the signature of the Guarantee
Trustee or its agents alone shall be sufficient and effective to perform
any such action. No third party shall be required to inquire as to the
authority of the Guarantee Trustee to so act or as to its compliance with
any of the terms and provisions of this Guarantee Agreement, both of which
shall be conclusively evidenced by the Guarantee Trustee or its agents
taking such action.
(x) The Guarantee Trustee shall not be liable for any action
taken, suffered, or omitted to be taken by it in good faith, without
negligence, and reasonably believed by it to be authorized or within the
discretion, rights, or powers conferred upon by this Guarantee Agreement.
(xi) Except as otherwise expressly provided by this Guarantee
Agreement, the Guarantee Trustee shall not
11
<PAGE>
be under any obligation to take any action that is discretionary hereunder.
(b) No provision of this Guarantee Agreement shall be deemed to
impose any duty or obligation on the Guarantee Trustee to perform any act or
acts or exercise any right, power, duty or obligation conferred or imposed on
it, in any jurisdiction in which it shall be illegal, or in which the Guarantee
Trustee shall be unqualified or incompetent in accordance with applicable law,
to perform any such act or acts, or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Guarantee Trustee
shall be construed to be a duty to act in accordance with such power and
authority.
3.3 Compensation. The Guarantor agrees to pay to the Guarantee Trustee
------------
from time to time reasonable compensation for all services rendered by it
hereunder (which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust) and to reimburse
the Guarantee Trustee upon request for all reasonable expenses, disbursements
and advances incurred or made by the Guarantee Trustee in accordance with any
provision of this Guarantee Agreement (including the reasonable compensation and
the expenses and disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its negligence or bad
faith.
3.4 Indemnity. The Guarantor agrees to indemnify the Guarantee Trustee
---------
for, and to hold it harmless against, any and all loss, liability, damage, claim
or expense incurred without negligence or bad faith on the part of the Guarantee
Trustee, arising out of or in connection with the acceptance or administration
of this Guarantee Agreement, including the costs and expenses of defending
itself against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder. The Guarantee Trustee
will not claim or exact any lien or charge on any Guarantee Payments as a result
of any amount due to it under this Guarantee Agreement.
ARTICLE IV
GUARANTEE TRUSTEE
4.1 Guarantee Trustee: Eligibility.
------------------------------
(a) There shall at all times be a Guarantee Trustee which shall: (i)
not be an Affiliate of the Guarantor; and (ii) be a Person that is eligible
pursuant to the Trust Indenture Act to act as such and has a combined capital
and surplus of at least $50,000,000, and shall be a corporation meeting the
requirements of
12
<PAGE>
Section 310(a) of the Trust Indenture Act. If such corporation publishes reports
of condition at least annually, pursuant to law or the requirements of its
supervising or examining authority, then, for the purposes of this Section and
to the extent permitted by the Trust Indenture Act, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published.
(b) If at any time the Guarantee Trustee shall cease to be eligible
to so act under Section 4.1(a), the Guarantee Trustee shall immediately resign
in the manner and with the effect set out in Section 4.2(c).
(c) If the Guarantee Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Guarantee Trustee and Guarantor shall in all respects comply with the provisions
of Section 310(b) of the Trust Indenture Act, to the same extent as if such
provisions applied to this Guarantee Agreement, subject to the penultimate
paragraph thereof.
4.2 Appointment, Removal and Resignation of the Guarantee Trustee.
-------------------------------------------------------------
(a) Subject to Section 4.2(b) and unless an Event of Default has
occurred and is continuing, the Guarantee Trustee may be appointed, or removed
without cause, at any time by the Guarantor.
(b) The Guarantee Trustee shall not be removed until a Successor
Guarantee Trustee has been appointed and has accepted such appointment by
written instrument executed by such Successor Guarantee Trustee and delivered to
the Guarantor.
(c) The Guarantee Trustee appointed hereunder shall hold office until
a Successor Guarantee Trustee shall have been appointed or until its removal or
resignation. The Guarantee Trustee may resign from office (without need for
prior or subsequent accounting) by an instrument in writing executed by the
Guarantee Trustee and delivered to the Guarantor, which resignation shall not
take effect until a Successor Guarantee Trustee has been appointed and has
accepted such appointment by instrument in writing executed by such Successor
Guarantee Trustee and delivered to the Guarantor and the resigning Guarantee
Trustee. If the Guarantee Trustee shall so resign and an Event of Default has
occurred and is continuing, a Successor Guarantee Trustee may be appointed by
the Holders of a majority in Liquidation Amount of the Capital Securities.
13
<PAGE>
(d) If no Successor Guarantee Trustee shall have been appointed and
accepted appointment as provided in this Section 4.2 within 60 days after
delivery to the Guarantor of an instrument of removal or resignation, the
resigning Guarantee Trustee may petition, at the expense of the Guarantor, any
court of competent jurisdiction for appointment of a Successor Guarantee
Trustee. Such court may thereupon, after prescribing such notice, if any, as it
may deem proper, appoint a Successor Guarantee Trustee.
(e) No Guarantee Trustee shall be liable for the acts or omissions to
act of any Successor Guarantee Trustee.
(f) Upon termination of this Guarantee Agreement or removal or
resignation of the Guarantee Trustee pursuant to this Section 4.2, the Guarantor
shall pay to the Guarantee Trustee all accrued and unpaid amounts due to the
Guarantee Trustee through the date of such termination, removal or resignation.
ARTICLE V
GUARANTEE
5.1 Guarantee. The Guarantor irrevocably and unconditionally agrees to
---------
pay in full to the Holders the Guarantee Payments (without duplication of
amounts theretofore paid by or on behalf of the Issuer), as and when due,
regardless of any defense, right of set-off or counterclaim which the Issuer may
have or assert other than the defense of payment. The Guarantor's obligation to
make a Guarantee Payment may be satisfied by direct payment of the required
amounts by the Guarantor to the Holders or by causing the Issuer to pay such
amounts to the Holders.
5.2 Waiver of Notice and Demand. The Guarantor hereby waives notice of
---------------------------
acceptance of the Guarantee Agreement and of any liability to which it applies
or may apply, presentment, demand for payment, any right to require a proceeding
first against the Guarantee Trustee, Issuer or any other Person before
proceeding against the Guarantor, protest, notice of nonpayment, notice of
dishonor, notice of redemption and all other notices and demands.
5.3 Obligations Not Affected. The obligations, covenants, agreements and
------------------------
duties of the Guarantor under this Guarantee Agreement shall in no way be
affected or impaired by reason of the happening from time to time of any of the
following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied agreement,
covenant, term or condition relating
14
<PAGE>
to the Capital Securities to be performed or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or any
portion of the Distributions (other than an extension of time for payment of
Distributions that results from the extension of any interest payment period on
the Debentures as so provided in the Indenture), Redemption Price, Liquidation
Distribution or any other sums payable under the terms of the Capital Securities
or the extension of time for the performance of any other obligation under,
arising out of, or in connection with, the Capital Securities;
(c) any failure, omission, delay or lack of diligence on the part of
the Holders or Property Trustee to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Holders or Property Trustee pursuant
to the terms of the Capital Securities, or any action on the part of the Issuer
granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of
any collateral, receivership, insolvency, bankruptcy, assignment for the benefit
of creditors, reorganization, arrangement, composition or readjustment of debt
of, or other similar proceedings affecting the Issuer or any of the assets of
the Issuer;
(e) any invalidity of, or defect or deficiency in, the Capital
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby
or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute
a legal or equitable discharge or defense of a guarantor, it being the intent of
this Section 5.3 that the obligations of the Guarantor hereunder shall be
absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or obtain the
consent of, the Guarantor with respect to the happening of any of the foregoing.
5.4 Rights of Holders. The Guarantor expressly acknowledges that: (i)
-----------------
this Guarantee Agreement will be deposited with the Guarantee Trustee to be held
for the benefit of the Holders; (ii) the Guarantee Trustee has the right to
enforce this Guarantee Agreement on behalf of the Holders; (iii) the Holders of
a Majority in Liquidation Amount of the Capital Securities have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Guarantee Trustee in respect of this
15
<PAGE>
Guarantee Agreement or exercising any trust or power conferred upon the
Guarantee Trustee under this Guarantee Agreement, provided, however, that,
subject to Section 3.1, the Guarantee Trustee shall have the right to decline to
follow any such direction if the Guarantee Trustee being advised by counsel
determines that the action so directed may not lawfully be taken, or if the
Guarantee Trustee in good faith shall, by a Responsible Officer or Officers of
the Guarantee Trustee, determine that the proceedings so directed would be
illegal or involve it in personal liability or be unduly prejudicial to the
rights of Holders not party to such direction, and provided further that nothing
in this Guarantee Agreement shall impair the right of the Guarantee Trustee to
take any action deemed proper by the Guarantee Trustee and which is not
inconsistent with such direction; and (iv) to the fullest extent permitted by
law, any Holder may institute a legal proceeding directly against the Guarantor
to enforce its rights under this Guarantee Agreement, without first instituting
a proceeding against the Guarantee Trustee, the Issuer or any other Person. The
Guarantor waives any right to require that any action be brought first against
the Issuer or any other Person or entity before proceeding directly against the
Guarantor.
5.5 Guarantee of Payment. This Guarantee Agreement creates a guarantee of
--------------------
payment and not of collection. This Guarantee Agreement will not be discharged
except by payment of the Guarantee Payments in full (without duplication of
amounts theretofore paid by the Issuer) or upon distribution of Debentures to
Holders as provided in the Trust Agreement.
5.6 Subrogation. The Guarantor shall be subrogated to all (if any) rights
-----------
of the Holders against the Issuer in respect of any amounts paid to the Holders
by the Guarantor under this Guarantee Agreement and shall have the right to
waive payment by the Issuer pursuant to Section 5.1; provided, however, that the
Guarantor shall not (except to the extent required by mandatory provisions of
law) be entitled to enforce or exercise any rights which it may acquire by way
of subrogation or any indemnity, reimbursement or other agreement, in all cases
as a result of payment under this Guarantee Agreement, if at the time of any
such payment, any amounts are due and unpaid under this Guarantee Agreement. If
any amount shall be paid to the Guarantor in violation of the preceding
sentence, the Guarantor agrees to hold such amount in trust for the Holders and
to pay over such amount to the Holders.
5.7 Independent Obligations. The Guarantor acknowledges that its
-----------------------
obligations hereunder are independent of the obligations of the Issuer with
respect to the Capital Securities and that the Guarantor shall be liable as
principal and as debtor hereunder to make Guarantee Payments pursuant to the
terms of this Guarantee
16
<PAGE>
Agreement notwithstanding the occurrence of any event referred to in subsections
(a) through (g), inclusive of Section 5.3 hereof.
5.8 Merger or Consolidation of Guarantor. The Guarantor covenants that it
------------------------------------
will not consolidate with or merge into any other Person, or transfer, convey or
lease all or substantially all of its assets or properties to any other Person,
and no other Person shall consolidate with or merge into the Guarantor, or
transfer, convey or lease all or substantially all of its assets to the
Guarantor, unless (i) either the Guarantor shall be the continuing corporation,
or the successor shall be a Person organized and existing under the laws of the
United States of America or a State thereof or the District of Columbia and such
successor shall expressly assume the Guarantor's obligations under this
Guarantee Agreement by written instrument in form satisfactory to the Trustee,
executed and delivered to the Trustee by such successor, (ii) immediately after
such merger or consolidation, or such transfer, conveyance or lease, no Event of
Default hereunder, and no event which, after notice or lapse of time or both
would become an Event of Default, shall have happened and be continuing, (iii)
such consolidation, merger, transfer, conveyance or lease is permitted under the
Trust Agreement and Indenture and does not give rise to any breach or violation
of the Trust Agreement or Indenture, and (iv) the Guarantee Trustee shall have
received an Opinion of Counsel of the Guarantor or such successor Person, as the
case may be, to the effect that such consolidation, merger, transfer, conveyance
or lease and any such assumption complies with the provisions of this Section
and that all conditions precedent herein relating to such transaction have been
complied with.
ARTICLE VI
SUBORDINATION
6.1 Subordination. The obligations of the Guarantor under this Guarantee
-------------
Agreement constitute unsecured obligations of the Guarantor and rank subordinate
and junior in right of payment to all Senior Indebtedness of the Guarantor,
which means (i) any indebtedness of the Company for borrowed or purchased money,
whether or not evidenced by bonds, debentures, notes or other written
instruments, (ii) obligations of the Guarantor for reimbursement under letters
of credit, banker's acceptances, security purchase facilities or similar
facilities issued for the account of the Guarantor, (iii) any indebtedness or
other obligations of the Company with respect to commodity contracts, (including
but not limited to contracts in the spot, forward and futures markets, options,
and contracts for differences) interest rate commodity and currency swap
agreements, cap, floor and collar agreements, currency spot and forward
contracts, and other similar agreements or arrangements designed to protect
against fluctuations
17
<PAGE>
in commodity prices, currency exchange or interest rates, and (iv) any
guarantees, endorsements (other than by endorsement of negotiable instruments
for collection in the ordinary course of business) or other similar contingent
obligations in respect of obligations of others of a type described in (i), (ii)
or (iii) above, whether or not such obligation is classified as a liability on a
balance sheet prepared in accordance with generally accepted accounting
principles, in each case listed in (i), (ii), (iii) and (iv) above whether
outstanding on the date of execution of this Guarantee Agreement or thereafter
incurred, except (a) those liabilities which expressly by their terms are made
pari passu or subordinate to the obligations of the Guarantor under this
Guarantee Agreement and (b) liabilities arising under similar guarantee
agreements as described in Section 6.2 hereof.
6.2 Pari Passu to Similar Guarantees. The obligations of the Guarantor
--------------------------------
under this Guarantee Agreement shall rank pari passu with the obligations of the
Guarantor under (i) the Debentures and (ii) any similar guarantee agreements
issued by the Guarantor on behalf of the holders of preferred securities or
capital securities issued by any DRI Trust (as defined in the Indenture).
ARTICLE VII
TERMINATION
7.1 Termination. This Guarantee Agreement shall terminate and be of no
-----------
further force and effect upon the earliest of (i) the date on which all of the
Capital Securities cease to be outstanding following the consummation of the
Exchange Offer on which date the New Guarantee Agreement shall be in full force
and effect, (ii) full payment of the Redemption Price of all Capital Securities,
(iii) the distribution of Debentures to the Holders in exchange for all of the
Capital Securities or (iv) full payment of the amounts payable in accordance
with the Trust Agreement upon liquidation of the Issuer. Notwithstanding the
foregoing, this Guarantee Agreement will continue to be effective or will be
reinstated if it has been terminated pursuant to one of such clauses (ii)
through (iv), as the case may be, if at any time any Holder must restore payment
of any sums paid with respect to Capital Securities or this Guarantee Agreement.
Sections 3.3 and 3.4 hereof shall survive the termination of this Guarantee
Agreement.
18
<PAGE>
ARTICLE VII
MISCELLANEOUS
8.1 Successors and Assigns. All guarantees and agreements contained in
----------------------
this Guarantee Agreement shall bind the successors, assigns, receivers, trustees
and representatives of the Guarantor and shall inure to the benefit of the
Holders of the Capital Securities then outstanding. Except in connection with a
consolidation, merger, transfer, conveyance or lease involving the Guarantor
that is permitted under Section 5.8 of this Guarantee Agreement, the Guarantor
shall not assign its obligations hereunder.
8.2 Amendments. Except with respect to any changes which do not adversely
----------
affect the rights of the Holders in any material respect (in which case no
consent of the Holders will be required), this Guarantee Agreement may only be
amended with the prior approval of the Holders of not less than a Majority in
Liquidation Amount of all the outstanding Capital Securities. The provisions of
the Trust Agreement concerning meetings or consents of the Holders shall apply
to the giving of such approval.
8.3 Notices. Any notice, request or other communication required or
-------
permitted to be given hereunder shall be in writing, duly signed by the party
giving such notice, and personally delivered, telecopied or mailed by first
class mail as follows:
(a) if given to the Guarantor, to the address set forth below or such
other address, facsimile number or to the attention of such other Person as the
Guarantor may give notice to the Holders and the Guarantee Trustee: Dominion
Resources, Inc., 901 E. Byrd Street, Richmond, Virginia 23219, Facsimile No.:
(804) 775-5819, Attention: Treasurer.
(b) If given to the Issuer, at the Issuer's address set forth below
or such other address as the Issuer may give notice to the Holders and the
Guarantee Trustee: Dominion Resources Capital Trust I, c/o Dominion Resources,
Inc., 901 E. Byrd Street, Richmond, Virginia 23219, Facsimile No.: (804) 775-
5819, Attention: Treasurer; with a copy to: The Chase Manhattan Bank, 450 W.
33rd Street, New York, New York 10001 Facsimile No.: (212) 946-8159, Attention:
Corporate Trustee Administration Department.
(c) If given to the Guarantee Trustee, to the address set forth below
or such other address, facsimile number or to the attention of such other Person
as the Guarantee Trustee may give notice to the Holders:
19
<PAGE>
The Chase Manhattan Bank
450 West 33rd Street
New York, New York 10001
Facsimile No.: (212) 946-8159
Attention: Corporate Trustee
Administration Department
(d) If given to any Holder, at the address set forth on the books and
records of the Issuer.
All notices hereunder shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or three days after being mailed by
first class mail, postage prepaid.
8.4 Benefit. This Guarantee Agreement is solely for the benefit of the
-------
Holders and is not separately transferable from the Capital Securities.
8.5 Interpretation. In this Guarantee Agreement, unless the context
--------------
otherwise requires:
(a) capitalized terms used in this Guarantee Agreement but not
defined in the preamble hereto have the respective meanings assigned to them in
Section 1.1;
(b) a term defined anywhere in this Guarantee Agreement has the same
meaning throughout;
(c) all references to "the Guarantee Agreement" or "this Guarantee
Agreement" are to this Guarantee Agreement as modified, supplemented or amended
from time to time;
(d) all references in this Guarantee Agreement to Articles and
Sections are to Articles and Sections of this Guarantee Agreement unless
otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning
when used in this Guarantee Agreement unless otherwise specified;
(f) a reference to the singular includes the plural and vice versa;
and
(g) the masculine, feminine or neuter genders used herein shall
include the masculine, feminine and neuter genders.
8.6 Governing Law. THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND
-------------
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO THE CONFLICT OF LAW PRINCIPLES THEREOF.
20
<PAGE>
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
21
<PAGE>
THIS GUARANTEE AGREEMENT is executed as of the day and year first above
written.
DOMINION RESOURCES, INC.
By: /s/ Edgar M. Roach, Jr.
-----------------------------------
Name: Edgar M. Roach, Jr.
Title: Executive Vice President
THE CHASE MANHATTAN BANK, as Guarantee
Trustee
By: /s/ G. McFarlane
-----------------------------------
Name: G. McFARLANE
Title: VICE PRESIDENT
22
<PAGE>
EXHIBIT 4.9
________________________________________________________________________________
CAPITAL SECURITIES GUARANTEE AGREEMENT
BETWEEN
DOMINION RESOURCES, INC.
(AS GUARANTOR)
AND
THE CHASE MANHATTAN BANK
(AS TRUSTEE)
DATED AS OF
______________, 199_
________________________________________________________________________________
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S> <C>
ARTICLE I
DEFINITIONS
1.1 Definitions............................................. 2
ARTICLE II
TRUST INDENTURE ACT
2.1 Trust Indenture Act; Application........................ 5
2.2 List of Holders......................................... 5
2.3 Reports by the Guarantee Trustee........................ 6
2.4 Periodic Reports to the Guarantee Trustee............... 6
2.5 Evidence of Compliance with Conditions Precedent........ 6
2.6 Events of Default; Waiver............................... 6
2.7 Event of Default; Notice................................ 7
2.8 Conflicting Interests................................... 7
ARTICLE III
POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
3.1 Powers and Duties of the Guarantee Trustee.............. 7
3.2 Certain Rights of Guarantee Trustee..................... 9
3.3 Compensation............................................ 12
3.4 Indemnity............................................... 12
ARTICLE IV
GUARANTEE TRUSTEE
4.1 Guarantee Trustee: Eligibility.......................... 12
4.2 Appointment, Removal and Resignation of the
Guarantee Trustee....................................... 13
ARTICLE V
GUARANTEE
5.1 Guarantee............................................... 14
5.2 Waiver of Notice and Demand............................. 14
5.3 Obligations Not Affected................................ 14
5.4 Rights of Holders....................................... 15
</TABLE>
-i-
<PAGE>
<TABLE>
<S> <C>
5.5 Guarantee of Payment................................ 16
5.6 Subrogation......................................... 16
5.7 Independent Obligations............................. 16
5.8 Merger or Consolidation of Guarantor................ 16
ARTICLE VI
SUBORDINATION
6.1 Subordination....................................... 17
6.2 Pari Passu to Similar Guarantees.................... 17
ARTICLE VII
TERMINATION
7.1 Termination......................................... 18
7.2 Termination of Old Guarantee........................ 18
ARTICLE VIII
MISCELLANEOUS
8.1 Successors and Assigns.............................. 18
8.2 Amendments.......................................... 18
8.3 Notices............................................. 18
8.4 Benefit............................................. 20
8.5 Interpretation...................................... 20
8.6 Governing Law....................................... 20
</TABLE>
-ii-
<PAGE>
CAPITAL SECURITIES GUARANTEE AGREEMENT
THIS CAPITAL SECURITIES GUARANTEE AGREEMENT, dated as of _______________
(the "Guarantee Agreement"), is executed and delivered by DOMINION RESOURCES,
INC., a Virginia corporation (the "Guarantor"), and THE CHASE MANHATTAN BANK, a
New York banking corporation, as trustee (the "Guarantee Trustee"), for the
benefit of the Holders (as defined herein) from time to time of the Capital
Securities (as defined herein) of DOMINION RESOURCES CAPITAL TRUST I, a Delaware
statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Trust Agreement, dated as of
December 8, 1997 (the "Trust Agreement"), among the Guarantor, as Depositor, The
Chase Manhattan Bank, as Property Trustee, Chase Manhattan Bank Delaware, as
Delaware Trustee, the Administrative Trustees named therein and the holders,
from time to time, of undivided beneficial interests in the assets of the
Issuer, the Issuer issued $250,000,000 aggregate Liquidation Amount (as defined
in the Trust Agreement) of its Capital Securities, Liquidation Amount $1,000 per
Capital Security (the "Old Capital Securities") representing preferred undivided
beneficial interests in the assets of the Issuer and having the terms set forth
in the Trust Agreement;
WHEREAS, the proceeds from the issuance of the Old Capital Securities,
together with the proceeds from the issuance of the Issuer's Common Securities
(as defined in Section 1.1), were used to purchase the Debentures (as defined in
the Trust Agreement) of the Guarantor which were deposited with The Chase
Manhattan Bank, as Property Trustee, under the Trust Agreement, as trust assets;
WHEREAS, as an incentive for the Holders to purchase the Old Capital
Securities, the Guarantor irrevocably and unconditionally agreed, to the extent
set forth in that certain Capital Securities Guarantee Agreement dated as of
December 8, 1997 (the "Old Guarantee Agreement") between the Guarantor and the
Guarantee Trustee, for the benefit of the Holders of the Old Capital Securities,
to pay to the Holders of the Old Capital Securities the Guarantee Payments (as
defined therein) (the "Old Guarantee") and to make certain other payments on the
terms and conditions set forth therein;
WHEREAS, pursuant to that certain Guarantee Exchange and Registration
Rights Agreement, dated as of December 8, 1997 (the "Guarantee Exchange and
Registration Rights Agreement"), among the Guarantor, the Issuer and certain
Purchasers named therein, the Guarantor and the Issuer agreed that if the
Guarantor and the Issuer file a registration statement (the "Registration
Statement") to exchange the Old Capital Securities for a like amount of new
capital securities (the "New Capital Securities" and, together with the Old
Capital Securities, the
<PAGE>
"Capital Securities"), then the Guarantor and the Issuer will simultaneously
include in the Registration Statement an offer to exchange the Old Guarantee for
the Guarantee (as defined herein) for the benefit of the Holders of the Capital
Securities;
WHEREAS, on ___________, 199_, the Guarantor and the Issuer filed the
Registration Statement;
WHEREAS, pursuant to the Guarantee Exchange and Registration Rights
Agreement, the Guarantor and the Issuer wish to exchange the Old Guarantee for
the Guarantee;
WHEREAS, the Guarantee will be substantially identical to the Old Guarantee
except that the Guarantee will be registered pursuant to an effective
registration statement under the Securities Act of 1933, as amended (the
"Securities Act"); and
WHEREAS, as required by the Guarantee Exchange Registration Rights
Agreement, the Guarantor desires irrevocably and unconditionally to agree, to
the extent set forth herein, to pay to the Holders of the Capital Securities the
Guarantee Payments (as defined in Section 1.1) and to make certain other
payments on the terms and conditions set forth herein;
NOW, THEREFORE, as required by the Guarantee Exchange Registration Rights
Agreement, the Guarantor executes and delivers this Capital Securities Guarantee
Agreement and pursuant to Section 5.1 hereof extends the Guarantee for the
benefit of the Holders from time to time of the Capital Securities.
ARTICLE I
DEFINITIONS
1.1 DEFINITIONS. As used in this Guarantee Agreement, the terms set forth
below shall, unless the context otherwise requires, have the following meanings.
Capitalized or otherwise defined terms used but not otherwise defined herein
shall have the meanings assigned to such terms in the Trust Agreement as in
effect on the date hereof.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person; provided, however, that an Affiliate of the
Guarantor shall not be deemed to be an Affiliate of the Issuer. For the purposes
of this definition, "control" when used with respect to any specified Person
means the power to direct the management and policies of such Person, directly
or indirectly, whether
2
<PAGE>
through the ownership of voting securities, by contract or otherwise; and the
terms "controlling" and "controlled" have meanings correlative to the foregoing.
"Board of Directors" means either the board of directors of the
Guarantor or any committee of that board duly authorized to act hereunder.
"Business Days" has the meaning set forth in the Trust Agreement.
"Capital Securities" has the meaning set forth in the preamble to this
Guarantee Agreement.
"Common Securities" means the 7.83% Common Securities (Liquidation
Amount $1,000 per Common Security) of the Issuer.
"Event of Default" means a default by the Guarantor on any of its
payment or other obligations under this Guarantee Agreement; provided, however,
that, except with respect to a default in payment of any Guarantee Payments, the
Guarantor shall have received notice of default from the Guarantee Trustee or
any Holder (with a copy to the Guarantee Trustee) and shall not have cured such
default within 60 days after receipt of such notice.
"Guarantee" has the meaning set forth in Section 5.1.
"Guarantee Payments" means the following payments or distributions,
without duplication, with respect to the Capital Securities, to the extent not
paid or made by or on behalf of the Issuer: (i) any accumulated and unpaid
Distributions (as defined in the Trust Agreement) required to be paid on the
Capital Securities, to the extent the Issuer shall have funds legally available
therefor at such time, (ii) the redemption price, including all accrued and
unpaid Distributions to but excluding the date of redemption (the "Redemption
Price") with respect to any Capital Securities called for redemption by the
Issuer, to the extent the Issuer shall have funds legally available therefor at
such time, and (iii) upon a voluntary or involuntary termination, dissolution,
winding-up or liquidation of the Issuer, unless Debentures are distributed to
the Holders in accordance with Article IX of the Trust Agreement, the lesser of
(a) the aggregate of the Liquidation Amount of $1,000 per Capital Security plus
accumulated and unpaid Distributions on the Capital Securities to but excluding
the date of payment, to the extent the Issuer shall have funds legally available
therefor at such time, and (b) the amount of assets of the Issuer remaining
available for distribution to Holders in liquidation of the Issuer (in either
case, the "Liquidation Distribution").
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"Guarantee Trustee" means The Chase Manhattan Bank, hereby appointed
as such by the Guarantor, until a Successor Guarantee Trustee has been appointed
and has accepted such appointment pursuant to the terms of this Guarantee
Agreement and thereafter means each such Successor Guarantee Trustee.
"Holder" means any holder, as registered on the books and records of
the Issuer, of any Capital Securities; provided, however, that in determining
whether the holders of the requisite percentage of Capital Securities have given
any request, notice, consent or waiver hereunder, "Holder" shall not include the
Guarantor, the Guarantee Trustee, or any Affiliate of the Guarantor or the
Guarantee Trustee.
"Indenture" means the Indenture dated as of December 1, 1997 between
the Guarantor and The Chase Manhattan Bank, as trustee, as supplemented by the
First Supplemental Indenture dated as of December 1, 1997, and as may be further
supplemented or amended from time to time.
"List of Holders" has the meaning specified in Section 2.2(a).
"Majority in Liquidation Amount of the Capital Securities" means,
except as provided by the Trust Indenture Act, a vote by the Holder(s) of more
than 50% of the Liquidation Amount of all then outstanding Capital Securities
issued by the Issuer.
"Officers' Certificate" means, with respect to the Guarantor, a
certificate signed by the Chairman of the Board, the Chief Executive Officer,
the President, or any Vice President (whether or not designated by a number or a
word or words added before or after the title Vice President), and by the
Treasurer, an Assistant Treasurer, the Controller, the Corporate Secretary or an
Assistant Corporate Secretary of such Person, and delivered to the Guarantee
Trustee. Any Officers' Certificate delivered with respect to compliance with a
condition or covenant provided for in this Guarantee Agreement (other than
pursuant to Section 2.4) shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definitions relating
thereto;
(b) a brief statement of the nature and scope of the examination
or investigation undertaken by each officer in rendering the Officers'
Certificate;
(c) a statement that each officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed
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opinion as to whether or not such covenant or condition has been complied
with; and
(d) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Person" means any individual, corporation, estate, partnership, joint
venture, association, joint stock company, limited liability company, trust,
unincorporated association, or government or any agency or political subdivision
thereof, or any other entity of whatever nature.
"Responsible Officer" means, with respect to the Guarantee Trustee,
any Senior Vice President, any Vice President, any Assistant Vice President, the
Corporate Secretary, any Assistant Corporate Secretary, the Treasurer, any
Assistant Treasurer, any Senior Trust Officer, any Trust Officer or Assistant
Trust Officer or any other officer of the corporate trust department of the
Guarantee Trustee and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of that
officer's knowledge of and familiarity with the particular subject.
"Senior Indebtedness of the Guarantor," for purposes of this Guarantee
Agreement, has the meaning set forth in Section 6.1 hereof.
"Successor Guarantee Trustee" means a successor Guarantee Trustee
possessing the qualifications to act as Guarantee Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
ARTICLE II
TRUST INDENTURE ACT
2.1 TRUST INDENTURE ACT; APPLICATION.
(a) This Guarantee Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Guarantee Agreement and
shall, to the extent applicable, be governed by such provisions.
(b) If and to the extent that any provision of this Guarantee
Agreement limits, qualifies or conflicts with the duties imposed by
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Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed duties
shall control.
2.2 LIST OF HOLDERS.
(a) The Guarantor shall furnish or cause to be furnished to the
Guarantee Trustee (i) semiannually, not more than five days after May 15 and
November 15 of each year, beginning with May 15, 1998, a list, in such form as
the Guarantee Trustee may reasonably require, of the names an addresses of the
Holders ("List of Holders") as of a date not more than 15 days prior to the
delivery thereof, and (ii) at such other times as the Guarantee Trustee may
request in writing, within 30 days after the receipt by the Guarantor of any
such request, a List of Holders as of a date not more than 15 days prior to the
time such list is furnished, in each case to the extent such information is in
the possession or control of the Guarantor and is not identical to a previously
supplied list of Holders or has not otherwise been received by the Guarantee
Trustee in its capacity as such. The Guarantee Trustee may destroy any List of
Holders previously given to it on receipt of a new List of Holders.
(b) The Guarantee Trustee shall comply with the obligations imposed
under Section 311(a), Section 311(b) and Section 312(b) of the Trust Indenture
Act as if it were subject to the Trust Indenture Act.
2.3 REPORTS BY THE GUARANTEE TRUSTEE. Not later than 60 days after
September 15 of each year, commencing September 15, 1998, the Guarantee Trustee
shall provide to the Holders such reports, dated as of such September 15, as are
required by Section 313(a) of the Trust Indenture Act, if any, in the form and
in the manner provided by Section 313 of the Trust Indenture Act. The Guarantee
Trustee shall also comply with the requirements of Section 313(d) of the Trust
Indenture Act.
2.4 PERIODIC REPORTS TO THE GUARANTEE TRUSTEE. The Guarantor shall
provide to the Guarantee Trustee and the Holders such documents, reports and
information, if any, as required by Section 314(a) of the Trust Indenture Act
and the compliance certificate required by Section 314(a)(4) of the Trust
Indenture Act, in the form, in the manner and at the times required by Section
314 of the Trust Indenture Act, such compliance certificate to be delivered
annually on or before May 1 in each year beginning in 1998.
2.5 EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT. The Guarantor shall
provide to the Guarantee Trustee such evidence of compliance with such
conditions precedent, if any, provided for in this Guarantee Agreement that
relate to any of the matters set forth in Section 314(c) of the Trust Indenture
Act, regardless of whether those provisions actually apply to this Guarantee
Agreement. Any certificate
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or opinion required to be given by an officer of the type mentioned in Section
314(c)(1) of the Trust Indenture Act may be given in the form of an Officers'
Certificate.
2.6 EVENTS OF DEFAULT; WAIVER. The Holders of a Majority in Liquidation
Amount of the Capital Securities may, by vote, on behalf of the Holders, waive
any past Event of Default and its consequences. Upon such waiver, any such
Event of Default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this
Guarantee Agreement, but no such waiver shall extend to any subsequent or other
default or Event of Default or impair any right consequent thereto.
2.7 EVENT OF DEFAULT; NOTICE.
(a) The Guarantee Trustee shall, within 10 Business Days after the
occurrence of any Event of Default actually known to a Responsible Officer of
the Guarantee Trustee, transmit by mail, first-class postage prepaid, to the
Holders, notices of all Events of Default known to the Guarantee Trustee, unless
such defaults have been cured or waived before the giving of such notice,
provided that, except in the case of a default in the payment of a Guarantee
Payment, the Guarantee Trustee shall be protected in withholding such notice if
and so long as the Board of Directors, the executive committee or a trust
committee of directors and/or Responsible Officers of the Guarantee Trustee in
good faith determines that the withholding of such notice is in the interests of
the Holders.
(b) The Guarantee Trustee shall not be deemed to have knowledge of any
Event of Default unless the Guarantee Trustee shall have received written notice
from the Guarantor or a Holder or a Responsible Officer charged with the
administration of this Guarantee Agreement shall have obtained written notice
from the Guarantor or a Holder of such Event of Default.
2.8 CONFLICTING INTERESTS. The Trust Agreement shall be deemed to be
specifically described in this Guarantee Agreement for the purposes of clause
(i) of the first proviso contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
3.1 POWERS AND DUTIES OF THE GUARANTEE TRUSTEE.
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(a) This Guarantee Agreement shall be held by the Guarantee Trustee
for the benefit of the Holders, and the Guarantee Trustee shall not transfer
this Guarantee Agreement to any Person except to a Holder exercising his or her
rights pursuant to Section 5.4(iv) or to a Successor Guarantee Trustee on
acceptance by such Successor Guarantee Trustee of its appointment to act as
Successor Guarantee Trustee. The right, title and interest of the Guarantee
Trustee shall automatically vest in any Successor Guarantee Trustee, upon
acceptance by such Successor Guarantee Trustee of its appointment hereunder, and
such vesting in the Successor Guarantee Trustee and cessation of right, title
and interest with respect to the Guarantee Trustee shall be effective whether or
not conveyancing documents have been executed and delivered pursuant to the
appointment of such Successor Guarantee Trustee.
(b) If an Event of Default actually known to a Responsible Officer of
the Guarantee Trustee has occurred and is continuing, the Guarantee Trustee
shall enforce this Guarantee Agreement for the benefit of the Holders, which
actions may include, without limitation (but subject to Section 5.4 hereof), (a)
recovering judgment, in its own name and as trustee of an express trust, against
the Guarantor for the whole amount of any Guarantee Payments remaining unpaid
and (b) filing such proofs of claim and other papers or documents as may be
necessary or advisable in order to have its claims and those of the Holders of
the Capital Securities allowed in any judicial proceedings relative to the
Guarantor, its creditors or its property.
(c) The Guarantee Trustee, before the occurrence of any Event of
Default and after the curing or waiving of all Events of Default that may have
occurred, shall undertake to perform only such duties as are specifically set
forth in this Guarantee Agreement, and no implied covenants shall be read into
this Guarantee Agreement against the Guarantee Trustee. In case an Event of
Default has occurred (that has not been cured or waived pursuant to Section
2.6), the Guarantee Trustee shall exercise such of the rights and powers vested
in it by this Guarantee Agreement, and use the same degree of care and skill in
its exercise thereof, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(d) No provision of this Guarantee Agreement shall be construed to
relieve the Guarantee Trustee from liability for its own negligent action, its
own negligent failure to act or its own willful misconduct, except that:
(i) prior to the occurrence of any Event of Default and after the
curing or waiving of all such Events of Default that may have occurred:
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(A) the duties and obligations of the Guarantee Trustee shall
be determined solely by the express provisions of this Guarantee
Agreement, and the Guarantee Trustee shall not be liable except for
the performance of such duties and obligations as are specifically set
forth in this Guarantee Agreement; and
(B) in the absence of bad faith on the part of the Guarantee
Trustee, the Guarantee Trustee may conclusively rely, as to the truth
of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Guarantee
Trustee and conforming to the requirements of this Guarantee
Agreement; but in the case of any such certificates or opinions that
by any provision hereof or of the Trust Indenture Act (were it
applicable hereto) are specifically required to be furnished to the
Guarantee Trustee, the Guarantee Trustee shall be under a duty to
examine the same to determine whether or not they conform to the
requirements of this Guarantee Agreement;
(ii) the Guarantee Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Guarantee
Trustee, unless it shall be proved that the Guarantee Trustee was negligent
in ascertaining the pertinent facts upon which such judgment was made;
(iii) the Guarantee Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in accordance
with the direction of the Holders of not less than a Majority in
Liquidation Amount of the Capital Securities relating to the time, method
and place of conducting any proceeding for any remedy available to the
Guarantee Trustee, or exercising any trust or power conferred upon the
Guarantee Trustee under this Guarantee Agreement; and
(iv) no provision of this Guarantee Agreement shall require
the Guarantee Trustee to expend or risk its own funds or otherwise incur
financial liability in the performance of any of its duties hereunder, or
in the exercise of any of its rights or powers, if the Guarantee Trustee
shall have reasonable grounds for believing that the repayment of such
funds or adequate indemnity against such risk or liability is
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not reasonably assured to it under the terms of this Guarantee Agreement.
3.2 CERTAIN RIGHTS OF GUARANTEE TRUSTEE.
(a) Subject to the provisions of Section 3.1:
(i) The Guarantee Trustee may rely and shall be fully
protected in acting or refraining from acting in good faith upon any
resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, appraisal, bond, debenture, note, other
evidence of indebtedness or other paper or document reasonably believed by
it to be genuine and to have been signed, sent or presented by the proper
party or parties.
(ii) Any direction or act of the Guarantor contemplated by this
Guarantee Agreement shall be sufficiently evidenced by an Officers'
Certificate unless otherwise prescribed herein.
(iii) Whenever, in the administration of this Guarantee
Agreement, the Guarantee Trustee shall deem it desirable that a matter be
proved or established before taking, suffering or omitting to take any
action hereunder, the Guarantee Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith on its part,
request and rely upon an Officers' Certificate which, upon receipt of such
request from the Guarantee Trustee, shall be promptly delivered by the
Guarantor.
(iv) The Guarantee Trustee may consult with legal counsel of
its own selection, and the advice or opinion of such legal counsel with
respect to legal matters shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted to be taken
by it hereunder in good faith and in reliance thereon and in accordance
with such advice or opinion. Such legal counsel may be legal counsel to the
Guarantor or any of its Affiliates and may be one of its employees. The
Guarantee Trustee shall have the right at any time to seek instructions
concerning the administration of this Guarantee Agreement from any court of
competent jurisdiction.
(v) The Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Guarantee
Agreement at the request or direction of
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any Holder, unless such Holder shall have offered to the Guarantee Trustee
such adequate security or indemnity against the costs, expenses (including
attorneys' fees and expenses) and liabilities that might be incurred by it
in complying with such request or direction, including such reasonable
advances as may be requested by the Guarantee Trustee; provided that
nothing contained in this Section 3.2(a)(v) shall be taken to relieve the
Guarantee Trustee, upon the occurrence of an Event of Default, of its
obligation to exercise the rights and powers vested in it by this Guarantee
Agreement.
(vi) The Guarantee Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, appraisal, bond, debenture, note, other evidence
of indebtedness or other paper or document, but the Guarantee Trustee, in
its discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit.
(vii) The Guarantee Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through its agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed by it hereunder; provided, however, that the Guarantee Trustee
shall be responsible for its own negligence with respect to the selection
of any such agent or attorney appointed by it hereunder.
(viii) Whenever in the administration of this Guarantee
Agreement the Guarantee Trustee shall deem it desirable to receive
instructions with respect to enforcing any remedy or right or taking any
other action hereunder, the Guarantee Trustee (A) may request instructions
from the Holders, (B) may refrain from enforcing such remedy or right or
taking such other action until such instructions are received, and (C)
shall be protected in acting in accordance with such instructions.
(ix) Any action take by the Guarantee Trustee or its agents
hereunder shall bind the Holders, and the signature of the Guarantee
Trustee or its agents alone shall be sufficient and effective to perform
any such action. No third party shall be required to inquire as to the
authority of the Guarantee Trustee to so act or as to its compliance with
any of the terms and provisions of this Guarantee Agreement, both
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of which shall be conclusively evidenced by the Guarantee Trustee or its
agent taking such action.
(x) The Guarantee Trustee shall not be liable for any action
taken, suffered, or omitted to be taken by it in good faith, without
negligence, and reasonably believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Guarantee Agreement.
(xi) Except as otherwise expressly provided by this Guarantee
Agreement, the Guarantee Trustee shall not be under any obligation to take
any action that is discretionary hereunder.
(b) No provision of this Guarantee Agreement shall be deemed to impose
any duty or obligation on the Guarantee Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it, in any
jurisdiction in which it shall be illegal, or in which the Guarantee Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts, or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Guarantee Trustee
shall be construed to be a duty to act in accordance with such power and
authority.
3.3 COMPENSATION. The Guarantor agrees to pay to the Guarantee Trustee
from time to time reasonable compensation for all services rendered by it
hereunder (which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust) and to reimburse
the Guarantee Trustee upon request for all reasonable expenses, disbursements
and advances incurred or made by the Guarantee Trustee in accordance with any
provision of this Guarantee Agreement (including the reasonable compensation and
the expenses and disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its negligence or bad
faith.
3.4 INDEMNITY. The Guarantor agrees to indemnify the Guarantee Trustee
for, and to hold it harmless against, any and all loss, liability, damage, claim
or expense incurred without negligence or bad faith on the part of the Guarantee
Trustee, arising out of or in connection with the acceptance or administration
of this Guarantee Agreement, including the costs and expenses of defending
itself against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder. The Guarantee Trustee
will not claim or exact any lien or charge on any Guarantee Payments as a result
of any amount due to it under this Guarantee Agreement.
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ARTICLE IV
GUARANTEE TRUSTEE
4.1 GUARANTEE TRUSTEE: ELIGIBILITY.
(a) There shall at all times be a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a Person that is eligible pursuant to the Trust Indenture
Act to act as such and has a combined capital and surplus of at least
$50,000,000, and shall be a corporation meeting the requirements of Section
310(a) of the Trust Indenture Act. If such corporation publishes reports
of condition at least annually, pursuant to law or the requirements of its
supervising or examining authority, then, for the purposes of this Section
and to the extent permitted by the Trust Indenture Act, the combined
capital and surplus of such corporation shall be deemed to be its capital
and surplus as set forth in its most recent report of condition so
published.
(b) If at any time the Guarantee Trustee shall cease to be eligible to
so act under Section 4.1(a), the Guarantee Trustee shall immediately resign in
the manner and with the effect set out in Section 4.2(c).
(c) If the Guarantee Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Guarantee Trustee and Guarantor shall in all respects comply with the provisions
of Section 310(b) of the Trust Indenture Act, subject to the penultimate
paragraph thereof.
4.2 APPOINTMENT, REMOVAL AND RESIGNATION OF THE GUARANTEE TRUSTEE.
(a) Subject to Section 4.2(b) and unless an Event of Default has
occurred and is continuing, the Guarantee Trustee may be appointed, or removed
without cause, at any time by the Guarantor.
(b) The Guarantee Trustee shall not be removed until a Successor
Guarantee Trustee has been appointed and has accepted such appointment by
written instrument executed by such Successor Guarantee Trustee and delivered to
the Guarantor.
(c) The Guarantee Trustee appointed hereunder shall hold office until
a Successor Guarantee Trustee shall have been appointed or
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until its removal or resignation. The Guarantee Trustee may resign from office
(without need for prior or subsequent accounting) by an instrument in writing
executed by the Guarantee Trustee and delivered to the Guarantor, which
resignation shall not take effect until a Successor Guarantee Trustee has been
appointed and has accepted such appointment by instrument in writing executed by
such Successor Guarantee Trustee and delivered to the Guarantor and the
resigning Guarantee Trustee. If the Guarantee Trustee shall so resign and an
Event of Default has occurred and is continuing, a Successor Guarantee Trustee
may be appointed by the Holders of a majority in Liquidation Amount of the
Capital Securities.
(d) If no Successor Guarantee Trustee shall have been appointed and
accepted appointment as provided in this Section 4.2 within 60 days after
delivery to the Guarantor of an instrument of removal or resignation, the
resigning Guarantee Trustee may petition, at the expense of the Guarantor, any
court of competent jurisdiction for appointment of a Successor Guarantee
Trustee. Such court may thereupon, after prescribing such notice, if any, as it
may deem proper, appoint a Successor Guarantee Trustee.
(e) No Guarantee Trustee shall be liable for the acts or omissions to
act of any Successor Guarantee Trustee.
(f) Upon termination of this Guarantee Agreement or removal or
resignation of the Guarantee Trustee pursuant to this Section 4.2, the Guarantor
shall pay to the Guarantee Trustee all accrued and unpaid amounts due to the
Guarantee Trustee through the date of such termination, removal or resignation.
ARTICLE V
GUARANTEE
5.1 GUARANTEE. The Guarantor irrevocably and unconditionally agrees to
pay in full to the Holders the Guarantee Payments (without duplication of
amounts theretofore paid by or on behalf of the Issuer), as and when due,
regardless of any defense, right of set-off or counterclaim which the Issuer may
have or assert other than the defense of payment (the "Guarantee"). The
Guarantor's obligation to make a Guarantee Payment may be satisfied by direct
payment of the required amounts by the Guarantor to the Holders or by causing
the Issuer to pay such amounts to the Holders.
5.2 WAIVER OF NOTICE AND DEMAND. The Guarantor hereby waives notice of
acceptance of the Guarantee and of any liability to which it applies or may
apply, presentment, demand for payment, any right to
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require a proceeding first against the Guarantee Trustee, Issuer or any other
Person before proceeding against the Guarantor, protest, notice of nonpayment,
notice of dishonor, notice of redemption and all other notices and demands.
5.3 OBLIGATIONS NOT AFFECTED. The obligations, covenants, agreements and
duties of the Guarantor under this Guarantee Agreement shall in no way be
affected or impaired by reason of the happening from time to time of any of the
following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied agreement,
covenant, term or condition relating to the Capital Securities to be performed
or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or any
portion of the Distributions (other than an extension of time for payment of
Distributions that results from the extension of any interest payment period on
the Debentures as so provided in the Indenture), Redemption Price, Liquidation
Distribution or any other sums payable under the terms of the Capital Securities
or the extension of time for the performance of any other obligation under,
arising out of, or in connection with, the Capital Securities;
(c) any failure, omission, delay or lack of diligence on the part of
the Holders or Property Trustee to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Holders or Property Trustee pursuant
to the terms of the Capital Securities, or any action on the part of the Issuer
granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting the Issuer or any of the assets of the
Issuer;
(e) any invalidity of, or defect or deficiency in, the Capital
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby
or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute
a legal or equitable discharge or defense of a guarantor, it being the intent of
this Section 5.3 that the obligations of the
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Guarantor hereunder shall be absolute and unconditional under any and all
circumstances.
There shall be no obligation of the Holders to give notice to, or obtain
the consent of, the Guarantor with respect to the happening of any of the
foregoing.
5.4 RIGHTS OF HOLDERS. The Guarantor expressly acknowledges that: (i)
this Guarantee will be deposited with the Guarantee Trustee to be held for the
benefit of the Holders; (ii) the Guarantee Trustee has the right to enforce this
Guarantee Agreement on behalf of the Holders; (iii) the Holders of a Majority in
Liquidation Amount of the Capital Securities have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Guarantee Trustee in respect of this Guarantee Agreement or exercising any trust
or power conferred upon the Guarantee Trustee under this Guarantee Agreement,
provided, however, that, subject to Section 3.1, the Guarantee Trustee shall
have the right to decline to follow any such direction if the Guarantee Trustee
being advised by counsel determines that the action so directed may not lawfully
be taken, or if the Guarantee Trustee in good faith shall, by a Responsible
Officer or Officers of the Guarantee Trustee, determine that the proceedings so
directed would be illegal or involve it in personal liability or be unduly
prejudicial to the rights of Holders not party to such direction, and provided
further that nothing in this Guarantee Agreement shall impair the right of the
Guarantee Trustee to take any action deemed proper by the Guarantee Trustee and
which is not inconsistent with such direction; and (iv) to the fullest extent
permitted by law, any Holder may institute a legal proceeding directly against
the Guarantor to enforce its rights under this Guarantee Agreement, without
first instituting a proceeding against the Guarantee Trustee, the Issuer or any
other Person. The Guarantor waives any right to require that any action be
brought first against the Issuer or any other Person or entity before proceeding
directly against the Guarantor.
5.5 GUARANTEE OF PAYMENT. This Guarantee creates a guarantee of payment
and not of collection. This Guarantee will not be discharged except by payment
of the Guarantee Payments in full (without duplication of amounts theretofore
paid by the Issuer) or upon distribution of Debentures to Holders as provided in
the Trust Agreement.
5.6 SUBROGATION. The Guarantor shall be subrogated to all (if any) rights
of the Holders against the Issuer in respect of any amounts paid to the Holders
by the Guarantor under this Guarantee Agreement and shall have the right to
waive payment by the Issuer pursuant to Section 5.1; provided, however, that the
Guarantor shall not (except to the extent required by mandatory provisions of
law) be entitled to enforce
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or exercise any rights which it may acquire by way of subrogation or any
indemnity, reimbursement or other agreement, in all cases as a result of payment
under this Guarantee Agreement, if at the time of any such payment, any amounts
are due and unpaid under this Guarantee Agreement. If any amount shall be paid
to the Guarantor in violation of the preceding sentence, the Guarantor agrees to
hold such amount in trust for the Holders and to pay over such amount to the
Holders.
5.7 INDEPENDENT OBLIGATIONS. The Guarantor acknowledges that its
obligations hereunder are independent of the obligations of the Issuer with
respect to the Capital Securities and that the Guarantor shall be liable as
principal and as debtor hereunder to make Guarantee Payments pursuant to the
terms of this Guarantee Agreement notwithstanding the occurrence of any event
referred to in subsections (a) through (g), inclusive of Section 5.3 hereof.
5.8 MERGER OR CONSOLIDATION OF GUARANTOR. The Guarantor covenants that it
will not consolidate with or merge into any other Person, or transfer, convey or
lease all or substantially all of its assets or properties to any other Person,
and no other Person shall consolidate with or merge into the Guarantor, or
transfer, convey or lease all or substantially all of its assets to the
Guarantor, unless (i) either the Guarantor shall be the continuing corporation,
or the successor shall be a Person organized and existing under the laws of the
United States of America or a State thereof or the District of Columbia and such
successor shall expressly assume the Guarantor's obligations under this
Guarantee Agreement by written instrument in form satisfactory to the Trustee,
executed and delivered to the Trustee by such successor, (ii) immediately after
such merger or consolidation, or such transfer, conveyance or lease, no Event of
Default hereunder, and no event which, after notice or lapse of time or both
would become an Event of Default, shall have happened and be continuing, (iii)
such consolidation, merger, transfer, conveyance or lease is permitted under the
Trust Agreement and Indenture and does not give rise to any breach or violation
of the Trust Agreement or Indenture, and (iv) the Guarantee Trustee shall have
received an opinion of counsel of the Guarantor or such successor Person, as the
case may be, to the effect that such consolidation, merger, transfer, conveyance
or lease and any such assumption complies with the provisions of this Section
and that all conditions precedent herein relating to such transaction have been
complied with.
ARTICLE VI
SUBORDINATION
6.1 SUBORDINATION. The obligations of the Guarantor under this Guarantee
Agreement constitute unsecured obligations of the Guarantor and rank subordinate
and junior in right of payment to all Senior
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Indebtedness of the Guarantor, which means (i) any indebtedness of the Company
for borrowed or purchased money, whether or not evidenced by bonds, debentures,
notes or other written instruments, (ii) obligations of the Guarantor for
reimbursement under letters of credit, banker's acceptances, security purchase
facilities or similar facilities issued for the account of the Guarantor, (iii)
any indebtedness or other obligations of the Company with respect to commodity
contracts (including but not limited to contracts in the spot, forward and
futures markets, options and contracts for differences), interest rate commodity
and currency swap agreements, cap, floor and collar agreements, currency spot
and forward contracts, and other similar agreements or arrangements designed to
protect against fluctuations in commodity prices, currency exchange or interest
rates, and (iv) any guarantees, endorsements (other than by endorsement of
negotiable instruments for collection in the ordinary course of business) or
other similar contingent obligations in respect of obligations of others of a
type described in (i), (ii) or (iii) above, whether or not such obligation is
classified as a liability on a balance sheet prepared in accordance with
generally accepted accounting principles, in each case listed in (i), (ii),
(iii) and (iv) above whether outstanding on the date of execution of this
Guarantee Agreement or thereafter incurred, except (a) those liabilities which
expressly by their terms are made pari passu or subordinate to the obligations
of the Guarantor under this Guarantee Agreement and (b) liabilities arising
under similar guarantee agreements as described in Section 6.2 hereof.
6.2 PARI PASSU TO SIMILAR GUARANTEES. The obligations of the Guarantor
under this Guarantee Agreement shall rank pari passu with the obligations of the
Guarantor under (i) the Debentures and (ii) any similar guarantee agreements
issued by the Guarantor on behalf of the holders of preferred securities or
capital securities issued by any DRI Trust (as defined in the Indenture).
ARTICLE VII
TERMINATION
7.1 TERMINATION. This Guarantee Agreement shall terminate and be of no
further force and effect upon the earliest of (i) full payment of the Redemption
Price of all Capital Securities, (ii) the distribution of Debentures to the
Holders in exchange for all of the Capital Securities or (iii) full payment of
the amounts payable in accordance with the Trust Agreement upon liquidation of
the Issuer. Notwithstanding the foregoing, this Guarantee Agreement will
continue to be effective or will be reinstated, as the case may be, if at any
time any Holder must restore payment of any sums paid with respect to Capital
Securities or this
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Guarantee Agreement. Sections 3.3 and 3.4 hereof shall survive the termination
of this Guarantee Agreement.
7.2 TERMINATION OF OLD GUARANTEE. The Old Guarantee Agreement is hereby
terminated and shall have no further force and effect except insofar as required
by Section 7.1 therein.
ARTICLE VIII
MISCELLANEOUS
8.1 SUCCESSORS AND ASSIGNS. All guarantees and agreements contained in
this Guarantee Agreement shall bind the successors, assigns, receivers, trustees
and representatives of the Guarantor and shall inure to the benefit of the
Holders of the Capital Securities then outstanding. Except in connection with a
consolidation, merger, transfer, conveyance or lease involving the Guarantor
that is permitted under Section 5.8 of this Guarantee Agreement, the Guarantor
shall not assign its obligations hereunder.
8.2 AMENDMENTS. Except with respect to any changes which do not adversely
affect the rights of the Holders in any material respect (in which case no
consent of the Holders will be required), this Guarantee Agreement may only be
amended with the prior approval of the Holders of not less than a Majority in
Liquidation Amount of all the outstanding Capital Securities. The provisions of
the Trust Agreement concerning meetings or consents of the Holders shall apply
to the giving of such approval.
8.3 NOTICES. Any notice, request or other communication required or
permitted to be given hereunder shall be in writing, duly signed by the party
giving such notice, and personally delivered, telecopied or mailed by first
class mail as follows:
(a) if given to the Guarantor, to the address set forth below or such
other address, facsimile number or to the attention of such other Person as the
Guarantor may give notice to the Holders and the Guarantee Trustee:
Dominion Resources, Inc.
901 E. Byrd Street
Richmond, Virginia 23219
Facsimile No.: 804) 775-5819
Attention: Treasurer
(b) If given to the Issuer, at the Issuer's address set forth below
or such other address as the Issuer may give notice to the Holders and the
Guarantee Trustee:
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Dominion Resources Capital Trust I
c/o Dominion Resources, Inc.
901 E. Byrd Street
Richmond, Virginia 23219
Facsimile No.: (804) 775-5819
Attention: Treasurer
with a copy to:
The Chase Manhattan Bank
450 W. 33rd Street
New York, New York 10001
Facsimile No.: (212) 946-8159
Attention: Corporate Trustee
Administration Department
(c) If given to the Guarantee Trustee, to the address set forth below
or such other address, facsimile number or to the attention of such other Person
as the Guarantee Trustee may give notice to the Holders:
The Chase Manhattan Bank
450 West 33rd Street
New York, New York 10001
Facsimile No.: (212) 946-8159
Attention: Corporate Trustee
Administration Department
(d) if given to any Holder, at the address set forth on the books and
records of the Issuer.
All notices hereunder shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or three days after being mailed by
first class mail, postage prepaid.
8.4 BENEFIT. This Guarantee Agreement is solely for the benefit of the
Holders and is not separately transferable from the Capital Securities.
8.5 INTERPRETATION. In this Guarantee Agreement, unless the context
otherwise requires:
(a) capitalized terms used in this Guarantee Agreement but not defined
in the preamble hereto have the respective meanings assigned to them in Section
1.1;
(b) a term defined anywhere in this Guarantee Agreement has the same
meaning throughout;
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(c) all references to "the Guarantee Agreement" or "this Guarantee
Agreement" are to this Guarantee Agreement as modified, supplemented or amended
from time to time;
(d) all references in this Guarantee Agreement to Articles and
Sections are to Articles and Sections of this Guarantee Agreement unless
otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning
when used in this Guarantee Agreement unless otherwise specified;
(f) a reference to the singular includes the plural and vice versa;
and
(g) the masculine, feminine or neuter genders used herein shall
include the masculine, feminine and neuter genders.
8.6 GOVERNING LAW. THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO THE CONFLICT OF LAW PRINCIPLES THEREOF.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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THIS GUARANTEE AGREEMENT is executed as of the day and year first above
written.
DOMINION RESOURCES, INC.
BY: ___________________________________
NAME:
TITLE:
THE CHASE MANHATTAN BANK, AS GUARANTEE
TRUSTEE
BY: ___________________________________
NAME:
TITLE:
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EXHIBIT 4.10
CAPITAL SECURITIES EXCHANGE AND
REGISTRATION RIGHTS AGREEMENT
CAPITAL SECURITIES EXCHANGE AND REGISTRATION RIGHTS AGREEMENT, dated as of
December 8, 1997, by and among Dominion Resources Capital Trust I, a Delaware
business trust (the "Trust"), Dominion Resources, Inc., a Virginia corporation
("Dominion Resources"), and Morgan Stanley & Co. Incorporated, J.P. Morgan
Securities Inc., Lehman Brothers Inc. and Merrill Lynch, Pierce, Fenner & Smith
Incorporated (collectively, the "Purchasers") relating to the Securities of the
Trust.
1. CERTAIN DEFINITIONS. For purposes of this Capital Securities Exchange
-------------------
and Registration Rights Agreement, the following terms shall have the following
respective meanings:
(a) "Commission" means the Securities and Exchange Commission, or any
other federal agency at the time administering the Exchange Act or the
Securities Act, whichever is the relevant statute for the particular purpose.
(b) "Debenture Exchange and Registration Rights Agreement" means the
Debenture Exchange and Registration Rights Agreement in respect of the
Debentures dated as of December 8, 1997 among Dominion Resources, the Trust and
the Purchasers.
(c) "Debentures" means the 7.83% Junior Subordinated Deferrable
Interest Debentures due December 1, 2027 of Dominion Resources, to be issued
pursuant to the Indenture.
(d) "Effective Time", in the case of (i) an Exchange Offer, means the
date on which the Commission declares the Exchange Offer registration statement
effective or on which such registration statement otherwise becomes effective
and (ii) a Shelf Registration, means the date on which the Commission declares
the Shelf Registration effective or on which the Shelf Registration otherwise
becomes effective.
(e) "Exchange Act" means the Securities Exchange Act of 1934, or any
successor thereto, as amended from time to time.
(f) "Exchange Debentures" has the meaning set forth in Section 2(a)
hereof.
(g) "Exchange Guarantee" has the meaning set forth in Section 2(a)
hereof.
(h) "Exchange Offer" has the meaning set forth in Section 2(a) hereof.
<PAGE>
(i) "Exchange Registration" has the meaning set forth in Section 3(c)
hereof.
(j) "Exchange Securities" has the meaning set forth in Section 2(a)
hereof.
(k) "Guarantee" means the Guarantee of Dominion Resources with respect
to the Securities, to the extent set forth in the Guarantee Agreement.
(l) "Guarantee Agreement" means the Capital Securities Guarantee
Agreement dated as of December 8, 1997 between Dominion Resources and The Chase
Manhattan Bank, as Guarantee Trustee (together with its successors and assigns,
"Guarantee Trustee"), for the benefit of the holders of the Securities.
(m) "Guarantee Exchange and Registration Rights Agreement" means the
Guarantee Exchange and Registration Rights Agreement in respect of the Guarantee
dated as of December 8, 1997 among Dominion Resources, the Trust and the
Purchasers.
(n) The term "holder" means each of the Purchasers for so long as it
owns any Registrable Securities, and its respective successors and assigns who
acquire Registrable Securities from time to time, directly or indirectly, from
such person or from any successor or assign of such person, in each case for so
long as such person owns any Registrable Securities.
(o) "Indemnified Person" has the meaning set forth in Section 5(a)
hereof.
(p) "Indenture" means the Indenture dated as of December 1, 1997,
between Dominion Resources and The Chase Manhattan Bank, as Debenture Trustee,
as supplemented by the First Supplemental Indenture dated as of December 1,
1997, and as further amended or supplemented from time to time.
(q) "Issue Date" means December 8, 1997.
(r) "Liquidation Amount" means the stated liquidation preference of
the Securities.
(s) "Material Event" means the happening of any event or the failure
of any event to occur or the discovery of any facts or otherwise (each a
"Material Event"), during the period that a shelf registration statement must be
kept effective as set forth in Section 2(b) which makes any statement made in
such shelf registration statement or the related
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prospectus untrue in any material respect or which causes such shelf
registration statement or prospectus to omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading.
(t) "New Guarantee Agreement" has the meaning set forth in the
Guarantee Exchange and Registration Rights Agreement.
(u) The term "person" means any individual, corporation, estate,
partnership, joint venture, association, joint stock company, limited liability
company, trust, unincorporated association or government or any agency or
political subdivision thereof, or any other entity of whatever nature.
(v) "Purchase Agreement" means the Purchase Agreement dated December
3, 1997, among Dominion Resources, the Trust and the Purchasers.
(w) "Registrable Securities" means the Securities; provided, however,
that such Securities shall cease to be Registrable Securities when
(i) the Exchange Offer is completed as contemplated in Section
2(a); provided that, prior to the consummation of the Exchange Offer,
existing Commission interpretations have not been changed such that the
Exchange Securities received by holders in the Exchange Offer for
Registrable Securities are not or would not be, upon receipt, transferable
by each such holder (other than a Restricted Holder) without restriction
under the Securities Act in the circumstances contemplated by Section 2(a);
and provided further, that any Exchange Security received by a broker-
dealer in an Exchange Offer exchange for a Registrable Security (other than
a Registrable Security that was acquired by the broker-dealer directly from
the Trust for resale pursuant to Rule 144A or another available exemption
under the Securities Act) will also be a Registrable Security through and
including the earlier of the 90th day after the Exchange Offer is completed
or such time as such broker-dealer no longer owns such Security; and
provided further, however, that any such Securities that, pursuant to the
last two sentences of Section 2(a) hereof, are included in a prospectus for
use in connection with resales by broker-dealers shall be deemed to be
Registrable Securities with respect to Sections 5 and 8 until resale of
such Exchange Securities has been effected within the 90-day period
referred to in Section 2(a) hereof;
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(ii) in the circumstances contemplated by Section 2(b), a
registration statement registering such Securities (and, in the
circumstances contemplated by Section 2(b), other than a registration
statement filed in addition to the Exchange Offer, also registering the
underlying Debentures and the related Guarantee) under the Securities Act
has been declared or becomes effective and such Securities have been sold
or otherwise transferred by the holder thereof pursuant to such effective
registration statement;
(iii) such Securities are sold pursuant to Rule 144 (or any
successor provision) promulgated under the Securities Act under
circumstances in which any legend borne by such Securities relating to
restrictions on transferability thereof, under the Securities Act, is
removed by the Trust or pursuant to the Trust Agreement or such Securities
are eligible to be sold pursuant to paragraph (k) of Rule 144; or
(iv) such Securities shall cease to be outstanding.
(x) "Registration Default" has the meaning set forth in Section 2(c)
hereof.
(y) "Registration Expenses" has the meaning set forth in Section 4
hereof.
(z) "Restricted Holder" means (i) a holder that is an "affiliate" of
the Trust or of Dominion Resources within the meaning of Rule 405 under the
Securities Act, (ii) a holder who acquires Exchange Securities outside the
ordinary course of such holder's business, (iii) a holder who has arrangements
or understandings with any person to participate in the Exchange Offer for the
purpose of distributing Exchange Securities or (iv) a broker-dealer who receives
Securities for its own account but did not acquire the Securities as a result of
market-making activities or other trading activities.
(aa) "Resale Period" has the meaning set forth in Section 2(a) hereof.
(bb) "Rule 144" has the meaning set forth in the Trust Agreement.
(cc) "Securities" means, collectively, the $250,000,000 aggregate
Liquidation Amount of the 7.83% Capital Securities, Liquidation Amount $1,000
per Capital Security, of the Trust to be issued and sold
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to the Purchasers, and any securities issued in exchange therefor or in lieu
thereof pursuant to the Trust Agreement or the Exchange Offer.
(dd) "Securities Act" means the Securities Act of 1933, or any
successor thereto, as amended from time to time.
(ee) "Shelf Registration" has the meaning set forth in Section 2(b)
hereof.
(ff) "Special Distributions" has the meaning set forth in Section 2(c)
hereof.
(gg) "Special Interest" has the meaning set forth in Section 2(c)
hereof.
(hh) "Trust Agreement" means the Amended and Restated Trust Agreement
dated as of December 8, 1997 among Dominion Resources, as Depositor, The Chase
Manhattan Bank, as Property Trustee, Chase Manhattan Bank Delaware, as Delaware
Trustee, the Administrative Trustees named therein and the holders, from time to
time, of undivided beneficial interests in the assets of the Trust.
(ii) "Trust Indenture Act" means the Trust Indenture Act of 1939, or
any successor thereto, and the rules, regulations and forms promulgated
thereunder, as amended from time to time.
Unless the context otherwise requires, any reference herein to a "Section"
or "clause" refers to a Section or clause, as the case may be, of this Capital
Securities Exchange and Registration Rights Agreement, and the words "herein,"
"hereof" and "hereunder" and other words of similar import refer to this Capital
Securities Exchange and Registration Rights Agreement as a whole and not to any
particular Section or other subdivision.
2. REGISTRATION UNDER THE SECURITIES ACT.
-------------------------------------
(a) Except as set forth in Section 2(b) below and to the extent not
prohibited by any applicable law or applicable interpretation of the staff of
the Commission, Dominion Resources and the Trust agree, jointly and severally,
to use their reasonable best efforts to file under the Securities Act, as soon
as practicable, but no later than 150 days after the Issue Date, a registration
statement relating to an offer to exchange (the "Exchange Offer") any and all of
the Securities for a like aggregate Liquidation Amount of capital securities of
the Trust which are substantially identical to the Securities (and which are
entitled to the benefits of the Trust Agreement which will be qualified under
the Trust Indenture Act) except that they have been registered pursuant to an
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effective registration statement under the Securities Act and such new capital
securities will not contain provisions for Special Distributions or provisions
restricting transfer in the absence of registration under the Securities Act
(such new capital securities hereinafter called "Exchange Securities") for any
or all of the Registrable Securities. Such registration statement shall also
relate to, and the consummation of the Exchange Offer shall be conditioned upon
the consummation of, an offer to exchange the Debentures for substantially
identical debentures of Dominion Resources pursuant to the Debenture Exchange
and Registration Rights Agreement (the "Exchange Debentures") and to an offer to
exchange the Guarantee for a substantially identical guarantee of Dominion
Resources pursuant to the Guarantee Exchange and Registration Rights Agreement
(the "Exchange Guarantee"). Dominion Resources and the Trust agree, jointly and
severally, to use their reasonable best efforts to cause such registration
statement to become effective under the Securities Act within 180 days of the
Issue Date. The Exchange Offer will be registered under the Securities Act on
the appropriate form and will comply in all material respects with all
applicable tender offer rules and regulations under the Exchange Act. Dominion
Resources and the Trust further agree, jointly and severally, to commence the
Exchange Offer promptly after such registration statement has become effective
and to hold the Exchange Offer open for at least 30 calendar days (or such
longer period as may be required by applicable law) after the date notice of the
Exchange Offer is mailed to holders, and the Trust agrees to issue Exchange
Securities for all Registrable Securities that have been validly tendered and
not withdrawn on or prior to the expiration of the Exchange Offer. The Exchange
Offer will be deemed to have been completed only if the Exchange Securities
received by holders other than Restricted Holders in the Exchange Offer for
Registrable Securities are, upon receipt, transferable by each such holder
without restriction under the Securities Act and the Exchange Act, it being
understood that broker-dealers receiving Exchange Securities will be subject to
certain prospectus delivery requirements with respect to resale of the Exchange
Securities. The Exchange Offer shall be deemed to have been completed upon the
earlier to occur of (i) the Trust having exchanged the Exchange Securities for
all outstanding Registrable Securities pursuant to the Exchange Offer and (ii)
the Trust having exchanged, pursuant to the Exchange Offer, Exchange Securities
for all Registrable Securities that have been validly tendered and not withdrawn
before the expiration of the Exchange Offer, which shall be on a date that is at
least 30 days (or such longer period as required by applicable law) following
the commencement of the Exchange Offer. Dominion Resources and the Trust agree,
jointly and severally, (x) to include in the registration statement a prospectus
for use in connection with any resales of Exchange Securities by a broker-
dealer, other than resales of Exchange Securities received by a broker-dealer
pursuant to the Exchange Offer in exchange for Registrable Securities acquired
by the broker-dealer directly from
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the Trust, and (y) to the extent any broker-dealer participates in the Exchange
Offer and notifies Dominion Resources or causes Dominion Resources to be
notified in writing that it is a participating broker-dealer, to use their
reasonable efforts to keep such registration statement effective for a period
(the "Resale Period") beginning when Exchange Securities are first issued in the
Exchange Offer and ending upon the earlier of the expiration of the 90th day
after the Exchange Offer has been completed or such shorter period if all
Exchange Securities received by such broker-dealer in exchange for Registrable
Securities acquired for its own account as a result of market-making or other
trading activities have been disposed of by such broker-dealer; and no broker-
dealers shall be authorized by Dominion Resources to, and shall not, deliver
such prospectus after such period in connection with resales contemplated by
this Section 2(a) or otherwise; it being understood that, notwithstanding
anything in this Capital Securities Exchange and Registration Rights Agreement
to the contrary, Dominion Resources shall not be required to comply with any
provision of this Section 2(a) or any other provision of this Capital Securities
Exchange and Registration Rights Agreement relating to the distribution of
Exchange Securities by broker-dealers, to the extent that Dominion Resources
reasonably concludes that compliance with such provision is no longer required
by applicable law or interpretation of the Staff of the Commission. With respect
to such registration statement, each broker-dealer that holds Exchange
Securities received in the Exchange Offer in exchange for Registrable Securities
not acquired by it directly from the Trust shall have the benefit of the rights
of indemnification and contribution set forth in Section 5 hereof.
(b) If (i) on or prior to the consummation of the Exchange Offer
existing Commission interpretations are changed such that the Exchange
Securities received by holders other than Restricted Holders in the Exchange
Offer for Registrable Securities are not or would not be, upon receipt,
transferable by each such holder without restriction under the Securities Act,
(ii) the Exchange Offer has not been declared effective within 180 days
following the Issue Date or (iii) the Purchasers so request (but only with
respect to the Securities) within 30 days after the consummation of the Exchange
Offer with respect to any Securities held by them which are not freely
transferable following consummation of the Exchange Offer, in lieu of (or, in
the case of clause (iii), in addition to) conducting the Exchange Offer
contemplated by Section 2(a), Dominion Resources and the Trust shall file under
the Securities Act, as soon as practicable, a "shelf" registration statement
providing for the registration of, and the sale on a continuous or delayed basis
by the holders of, all of the Registrable Securities (or, in the case of clause
(iii), of the Securities held by the Purchasers for resale by the Purchasers),
pursuant to Rule 415 under the Securities Act and/or any similar rule that may
be adopted by the Commission (the "Shelf
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Registration"). Unless the Shelf Registration has been filed in addition to
conducting the Exchange Offer contemplated by Section 2(a), the Shelf
Registration shall also provide for the registration of the Debentures pursuant
to the Debenture Exchange and Registration Rights Agreement and for the
registration of the Guarantee pursuant to the Guarantee Exchange and
Registration Rights Agreement. Dominion Resources and the Trust agree, jointly
and severally, to use their reasonable best efforts to cause the Shelf
Registration to become or be declared effective and to keep such Shelf
Registration continuously effective for a period ending on the earlier of (A)
the second anniversary of the Issue Date (or, in the case of clause (iii) above,
the first anniversary) or (B) such time as there are no longer any Registrable
Securities outstanding. Dominion Resources and the Trust further agree, jointly
and severally, to supplement or make amendments to the Shelf Registration, as
and when required by the rules, regulations or instructions applicable to the
registration form used by Dominion Resources and the Trust for such Shelf
Registration or by the Securities Act or rules and regulations thereunder for
shelf registration, and Dominion Resources and the Trust agree, jointly and
severally, to furnish to the holders of the Registrable Securities copies of any
such supplement or amendment prior to its being used and/or filed with the
Commission.
(c) In the event that (i) Dominion Resources and the Trust have not
filed the registration statement relating to the Exchange Offer on or before the
150th day after the Issue Date, or (ii) such registration statement has not
become effective or been declared effective by the Commission or, if applicable,
a Shelf Registration has not been filed on or before the 180th day after the
Issue Date, or (iii) any of the Exchange Offer, the exchange offer contemplated
by the Guarantee Exchange and Registration Rights Agreement and the exchange
offer contemplated by the Debenture Exchange and Registration Rights Agreement
has not been completed or, if applicable, the Shelf Registration is not declared
effective within 210 days after the Issue Date or (iv) any registration
statement required by Section 2(b) is filed and declared effective but shall
thereafter cease to be effective at any time prior to the second anniversary of
the Issue Date (other than after such time as all Securities have been disposed
of thereunder or otherwise cease to be Registrable Securities within the meaning
of this Agreement), (each such event referred to in clauses (i) through (iv), a
"Registration Default"), then interest will accrue (in addition to the stated
interest rate on the Debentures) at the rate of 0.25% per annum on the principal
amount of the Debentures (the "Special Interest"), and the distributions will
accumulate (in addition to the stated distribution rate on the Securities) at
the rate of 0.25% per annum on the Liquidation Amount of the Securities (the
"Special Distributions") commencing on (w) the 151st day after the Issue Date in
the case of (i) above, (x) the 181st day after the Issue Date in the case of
(ii) above, (y) the 211th day after
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the Issue Date in the case of (iii) above, or (z) on the day after such shelf
registration statement ceases to be effective in the case of (iv) above;
provided, that if, in the case of (iv) above, such shelf registration statement
ceases to be effective as a result of a Material Event, neither Special
Distributions nor Special Interest shall accumulate or accrue so long as such
shelf registration statement again becomes effective within 60 days of the date
notice of such Material Event was received by the holders of the Securities, the
Guarantee and the Debentures; and provided further, that if such shelf
registration statement does not again become effective within such 60-day
period, Special Interest shall accrue and Special Distributions shall accumulate
commencing on the 61st day after such shelf registration statement ceases to be
effective.
Notwithstanding the foregoing, neither the additional interest rate on the
Debentures nor the additional distributions rate on the liquidation amount of
the Securities may exceed 0.25% per annum; provided that (1) upon the filing of
the registration statement (in the case of (i) above), (2) upon the
effectiveness of the registration statement or the filing of a shelf
registration statement (in the case of (ii) above), or (3) upon the completion
of the exchange of the Securities, the Guarantee and the Debentures or upon the
effectiveness of the shelf registration statement (in the case of (iii) above),
(4) upon the effectiveness of the shelf registration statement which had ceased
to remain effective (in the case of (iv) above), (5) at the time when the
Securities can be sold by non-affiliates pursuant to Rule 144 under the
Securities Act without any limitation under clauses (c), (e), (f) and (h) of
Rule 144, (6) at the second anniversary of the date the Securities are issued,
or (7) the date as of which all securities are sold pursuant to the shelf
registration statement, additional interest on the Debentures, and additional
distributions on the liquidation amount of the Securities as a result of such
clause, as the case may be, shall cease to accrue or accumulate, as the case may
be. Such Additional Interest and such Additional Distributions will be payable
in cash semi-annually in arrears on each June 1 and December 1 in accordance
with, and subject to the deferral provisions of, the Indenture and the Trust
Agreement, respectively. Special Interest, if any, and Special Distributions, if
any, will be computed on the basis of a 365 or 366 day year, as the case may be,
and the number of days actually elapsed.
(d) Any reference herein to a registration statement shall be deemed
to include any document incorporated therein by reference as of the applicable
Effective Time and any reference herein to any post-effective amendment to a
registration statement shall be deemed to include any document incorporated
therein by reference as of a time after such Effective Time.
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3. REGISTRATION PROCEDURES. If Dominion Resources and the Trust file a
-----------------------
registration statement pursuant to Section 2(a) or Section 2(b), the following
provisions shall apply:
(a) At or before the Effective Time of the Exchange Offer or the
Shelf Registration, as the case may be, Dominion Resources shall qualify the
Indenture, the New Guarantee Agreement or Guarantee Agreement (as applicable)
and the Trust Agreement under the Trust Indenture Act.
(b) In the event that such qualification would require the
appointment of a new trustee under any of the Indenture, the New Guarantee
Agreement, the Guarantee Agreement or the Trust Agreement, such new trustee
shall be appointed thereunder pursuant to the applicable provisions thereof.
(c) In connection with the joint and several obligations of Dominion
Resources and the Trust with respect to the registration of the Exchange
Securities, the Exchange Guarantee and the Exchange Debentures, as contemplated
by Section 2(a) (the "Exchange Registration"), if applicable, Dominion Resources
and the Trust shall, as soon as reasonably possible (or as otherwise specified):
(i) prepare and file with the Commission, as soon as
practicable but no later than 150 days after the Issue Date, a registration
statement with respect to the Exchange Registration on any form which may
be utilized by Dominion Resources and the Trust and which shall permit the
Exchange Offer and resales of Exchange Securities by broker-dealers during
the Resale Period to be effected as contemplated by Section 2(a) hereof,
and use its reasonable best efforts to cause such registration statement to
become effective as soon as practicable thereafter;
(ii) as soon as practicable prepare and file with the Commission
such amendments and supplements to such registration statement and the
prospectus included therein as may be necessary to effect and maintain the
effectiveness of such registration statement for the periods and purposes
contemplated in Section 2(a) hereof and as may be required by the
applicable rules and regulations of the Commission and the instructions
applicable to the form of such registration statement, and promptly provide
each broker-dealer holding Exchange Securities with such number of copies
of the prospectus included therein (as then amended or supplemented), in
conformity in all material respects with the requirements of the Securities
Act and the Trust Indenture Act and the rules and regulations of the
Commission promulgated
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thereunder, as such broker-dealer reasonably may request prior to the
expiration of the Resale Period, for use in connection with resales of
Exchange Securities;
(iii) promptly notify each broker-dealer that has requested or
received copies of the prospectus included in such registration statement,
and confirm such advice in writing, (A) when such registration statement or
the prospectus included therein or any prospectus amendment or supplement
or post-effective amendment has become effective, (B) of the receipt of any
comments by the Commission and by the Blue Sky or securities commissioner
or regulator of any state with respect thereto or any request by the
Commission for amendments or supplements to such registration statement or
prospectus or for additional information, (C) of the issuance by the
Commission of any stop order suspending the effectiveness of such
registration statement or the initiation or threatening by the Commission
of any proceedings for that purpose, (D) of the receipt by either Dominion
Resources or the Trust of any notification with respect to the suspension
of the qualification of the Exchange Securities and the Exchange Guarantee
for sale in any United States jurisdiction or the initiation or, to
Dominion Resources' or the Trust's knowledge, threatening of any proceeding
for such purpose, or (E) at any time during the Resale Period when a
prospectus is required to be delivered under the Securities Act, that such
registration statement, prospectus, prospectus amendment or supplement or
post-effective amendment does not conform in all material respects to the
applicable requirements of the Securities Act and the Trust Indenture Act
and the rules and regulations of the Commission promulgated thereunder or
contains an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then
existing;
(iv) in the event that Dominion Resources and the Trust would be
required, pursuant to Section 3(c)(iii)(E) above, to notify any broker-
dealers holding Exchange Securities, without delay prepare and furnish to
each such holder a reasonable number of copies of a prospectus supplemented
or amended so that, as thereafter delivered to purchasers of such Exchange
Securities during the Resale Period, such prospectus shall conform in all
material respects to the applicable requirements of the Securities Act and
the Trust Indenture Act and the rules and regulations of the Commission
promulgated thereunder and shall not contain an
11
<PAGE>
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances then existing;
(v) their reasonable best efforts to obtain the withdrawal of
any order suspending the effectiveness of such registration statement or
any post-effective amendment thereto at the earliest practicable date;
(vi) use their reasonable best efforts to (A) register or
qualify the Exchange Securities and the Exchange Guarantee under the
securities laws or blue sky laws of such jurisdictions as are contemplated
by Section 2(a) no later than the commencement of the Exchange Offer, (B)
keep such registrations or qualifications in effect and comply with such
laws so as to permit the continuance of offers, sales and dealings therein
in such jurisdictions until the expiration of the Resale Period and (C)
take any and all other actions as may be reasonably necessary or advisable
to enable each broker-dealer holding Exchange Securities to consummate the
disposition thereof in such jurisdictions; provided, however, that neither
Dominion Resources nor the Trust shall be required for any such purpose to
(1) qualify to do business in any jurisdiction wherein it would not
otherwise be required to qualify but for the requirements of this Section
3(c)(vi), (2) consent to general service of process in any such
jurisdiction or (3) in the case of Dominion Resources, make any changes to
its Articles of Incorporation or Bylaws or any agreement between it and its
stockholders or in the case of the Trust, make any changes to the Trust
Agreement;
(vii) provide a CUSIP number for all Exchange Securities, not
later than the applicable Effective Time; and
(viii) comply with all applicable rules and regulations of the
Commission, and make generally available to all holders of Securities as
soon as practicable but no later than eighteen months after the Effective
Time, an earnings statement of Dominion Resources and its subsidiaries
complying with Section 11 (a) of the Securities Act (including, at the
option of Dominion Resources, Rule 158 thereunder).
(d) In connection with the joint and several obligations of Dominion
Resources and the Trust with respect to the Shelf Registration, if applicable,
Dominion Resources and the Trust shall use their reasonable best efforts to
cause the Shelf Registration to become
12
<PAGE>
effective to permit the sale of the Registrable Securities by the holders
thereof in accordance with the intended method or methods of distribution
thereof described in the Shelf Registration. In connection therewith, Dominion
Resources and the Trust shall as soon as reasonably possible (or as otherwise
specified):
(i) prepare and file with the Commission, as soon as
practicable, a registration statement with respect to the Shelf
Registration on any form which may be utilized by Dominion Resources and
the Trust and which shall permit the disposition of the Registrable
Securities in accordance with the intended method or methods thereof, as
specified in writing to Dominion Resources and the Trust by the holders of
the Registrable Securities and use their reasonable best efforts to cause
such registration statement to become effective as soon as practicable
thereafter;
(ii) as soon as practicable, prepare and file with the
Commission such amendments and supplements to such registration statement
and the prospectus included therein as may be necessary to effect and
maintain the effectiveness of such registration statement for the period
specified in Section 2(b) hereof and as may be required by the applicable
rules and regulations of the Commission and the instructions applicable to
the form of such registration statement and furnish to the holders of the
Registrable Securities copies of any such supplement or amendment
simultaneously with or prior to its being used or filed with the
Commission;
(iii) comply with the provisions of the Securities Act applicable
to Dominion Resources or the Trust in connection with the disposition of
all of the Registrable Securities covered by such registration statement in
accordance with the intended methods of disposition by the holders thereof,
set forth in such registration statement;
(iv) provide (A) the holders of the Registrable Securities to be
included in such registration statement and not more than one counsel for
all the holders of such Registrable Securities, (B) the underwriters (which
term, for purposes of this Capital Securities Exchange and Registration
Rights Agreement, shall include a person deemed to be an underwriter within
the meaning of Section 2(11) of the Securities Act), if any, thereof, (C)
the sales or placement agent, if any, therefor and (D) one counsel for such
underwriters or agents, if any, reasonable opportunity to participate in
the preparation of such registration statement,
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<PAGE>
each prospectus included therein or filed with the Commission,
and each amendment or supplement thereto;
(v) for a reasonable period prior to the filing of
such registration statement, and throughout the period specified
in Section 2(b), make available at reasonable times at Dominion
Resources' principal place of business or such other reasonable
place for inspection by the persons referred to in Section
3(d)(iv) who shall certify to Dominion Resources and the Trust
that they have a current intention to sell the Registrable
Securities pursuant to the Shelf Registration such financial and
other information and books and records of Dominion Resources and
the Trust, and cause the officers, employees, counsel and
independent certified public accountants of Dominion Resources
and the Trust to respond to such inquiries, as shall be
reasonably necessary, in the judgment of the respective counsel
referred to in such Section, to conduct a reasonable
investigation within the meaning of Section 11 of the Securities
Act; provided, however, that each such party shall be required to
maintain in confidence and not to disclose to any other person
any information or records reasonably designated by Dominion
Resources as being confidential, until such time as (A) such
information becomes a matter of public record (whether by virtue
of its inclusion in such registration statement or otherwise,
except by disclosure by such party in breach of this Agreement),
or (B) such person shall be required so to disclose such
information pursuant to the subpoena or order of any court or
other governmental agency or body having jurisdiction over the
matter (subject to, and only to the extent required by, the
requirements of such order, and only after such person shall have
given Dominion Resources prompt prior written notice of such
requirement);
(vi) promptly notify the selling holders of Registrable
Securities, the sales or placement agent, if any, therefor and
the managing underwriter or underwriters, if any, thereof and
confirm such advice in writing, (A) when such registration
statement or the prospectus included therein or any prospectus
amendment or supplement or post-effective amendment has become
effective, (B) of any comments by the Commission and by the Blue
Sky or securities commissioner or regulator of any state with
respect thereto or any request by the Commission for amendments
or supplements to such registration statement or prospectus or
for additional information, (C) of the issuance by the Commission
of any stop order suspending the effectiveness of such
registration
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<PAGE>
statement or the initiation or threatening by the Commission of
any proceedings for that purpose, (D) if at any time the joint
and several representations and warranties of Dominion Resources
and the Trust contemplated by Section 3(d)(xv)(A) cease to be
true and correct in all material respects, (E) of the receipt by
either Dominion Resources or the Trust of any notification with
respect to the suspension of the qualification of the Registrable
Securities and the Guarantee for sale in any jurisdiction or, to
Dominion Resources' or the Trust's knowledge, the initiation or
threatening of any proceeding for such purpose, or (F) at any
time when a prospectus is required to be delivered under the
Securities Act, that such registration statement, prospectus,
prospectus amendment or supplement or post-effective amendment,
or any document incorporated by reference in any of the
foregoing, does not conform in all material respects to the
applicable requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission
promulgated thereunder or contains an untrue statement of a
material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing;
(vii) use their best efforts to obtain the withdrawal
of any order suspending the effectiveness of such registration
statement or any post-effective amendment thereto at the earliest
practicable date;
(viii) if requested by any managing underwriter or
underwriters, any placement or sales agent or any holder or
counsel for the holders of Registrable Securities, promptly
incorporate in a prospectus supplement or post-effective
amendment such information as is required by the applicable rules
and regulations of the Commission and as such managing
underwriter or underwriters, such agent or such holder specifies
should be included therein relating to the terms of the sale of
such Registrable Securities, including, without limitation,
information with respect to the Liquidation Amount or the
principal amount, as the case may be, of Registrable Securities
being sold by any holder or agent or to any underwriters, the
name and description of such holder, agent or underwriter, the
offering price of such Registrable Securities and any discount,
commission or other compensation payable in respect thereof, the
purchase price being paid therefor by such underwriters and with
respect to any other terms of the offering of the Registrable
Securities, to be sold by such holder or agent or to such
underwriters; and make
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<PAGE>
all required filings of such prospectus supplement or post-
effective amendment promptly after notification of the matters to
be incorporated in such prospectus supplement or post-effective
amendment;
(ix) furnish to each holder of Registrable Securities,
each placement or sales agent, if any, therefor, each
underwriter, if any, thereof and the respective counsel referred
to in Section 3(d)(iv) a conformed copy of such registration
statement, each such amendment and supplement thereto and such
number of copies of such registration statement and of the
prospectus included in such registration statement, in conformity
with the requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission
promulgated thereunder, and such other documents, as such holder,
agent, if any, and underwriter, if any, may reasonably request in
order to facilitate the offering and disposition of the
Registrable Securities owned by such holder, offered or sold by
such agent or underwritten by such underwriter and to permit such
holder, agent and underwriter to satisfy the prospectus delivery
requirements of the Securities Act; and each of Dominion
Resources and the Trust hereby consents to the use of such
prospectus and any amendment or supplement thereto by each such
holder and by any such agent and underwriter, in each case in the
form most recently provided to such party by Dominion Resources
and the Trust, in connection with the offering and sale of the
Registrable Securities covered by the prospectus or any
supplement or amendment thereto;
(x) use their reasonable best efforts to (A) register
or qualify the Registrable Securities to be included in such
registration statement and the Guarantee under such securities
laws or blue sky laws of such jurisdictions as any holder of such
Registrable Securities and each placement or sales agent, if any,
therefor and underwriter, if any, thereof shall reasonably
request, (B) keep such registrations or qualifications in effect
and comply with such laws so as to permit the continuance of
offers, sales and dealings therein in such jurisdictions during
the period the Shelf Registration is required to remain effective
under Section 2(b) above, and (C) take any and all other actions
as may be reasonably necessary or advisable to enable each such
holder, agent, if any, and underwriter, if any, to consummate the
disposition in such jurisdictions of Registrable Securities;
provided, however, that neither Dominion Resources nor the Trust
shall be required for any such purpose to (1) qualify to do
business
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<PAGE>
in any jurisdiction wherein it would not otherwise be required to
qualify but for the requirements of this Section 3(d)(x), (2)
consent to general service of process in any such jurisdiction,
(3) in the case of Dominion Resources, make any changes to its
Articles of Incorporation or Bylaws or any agreement between it
and its shareholders or, in the case of the Trust, make any
changes to the Trust Agreement;
(xi) use their reasonable best efforts to obtain the
consent or approval of each governmental agency or authority,
whether federal, state or local, which may be required to effect
the Shelf Registration or the offering or sale in connection
therewith or to enable the selling holder or holders to offer, or
to consummate the disposition of, their Registrable Securities;
(xii) cooperate with the holders of the Registrable
Securities and the managing underwriters, if any, to facilitate
the timely preparation and delivery of certificates representing
Registrable Securities to be sold, which certificates shall be
printed, lithographed or engraved, or produced by any combination
of such methods, and which shall not bear any restrictive
legends; and, in the case of an underwritten offering, enable
such Registrable Securities to be in such denominations and
registered in such names as the managing underwriters may request
at least two business days prior to any sale of the Registrable
Securities;
(xiii) provide a CUSIP number for all Registrable
Securities, not later than the applicable Effective Time;
(xiv) enter into any underwriting agreement,
engagement letter, agency agreement, "best efforts" underwriting
agreement or similar agreement, as appropriate, including
(without limitation) provisions relating to indemnification and
contribution substantially the same as those set forth in Section
5 hereof, and take such other actions in connection therewith as
reasonably requested in order to expedite or facilitate the
disposition of such Registrable Securities; provided, that
Dominion Resources and the Trust shall not be required to (i)
enter into any such agreement more than once with respect to all
of the Registrable Securities and may delay entering into such
agreement until the consummation of any underwritten public
offering which Dominion Resources and the Trust shall have then
undertaken or (ii) enter into any engagement letter, agency
agreement, "best effort" underwriting agreement or
17
<PAGE>
similar agreement whatsoever with respect to the Registrable
Securities, and provided further, that Dominion Resources and the
Trust shall not be obligated to enter into any such agreement
with a broker-dealer which results in the need for a "qualified
independent underwriter" (within the meaning of the Rules of Fair
Practice and the Bylaws of the National Association of Securities
Dealers, Inc. ("NASD") or any successor thereto, as amended from
time to time (the "Rules and Bylaws of NASD");
(xv) whether or not an agreement of the type referred
to in Section (3)(d)(xiv) hereof is entered into and whether or
not any portion of the offering contemplated by such registration
statement is an underwritten offering or is made through a
placement or sales agent or any other entity, (A) make such
representations and warranties to the holders of such Registrable
Securities and the placement or sales agent, if any, therefor and
the underwriters, if any, thereof as are customarily made with
respect to the offering of debt securities pursuant to any
appropriate agreement or to a registration statement on the
applicable form under the Securities Act; (B) obtain an opinion
or opinions of counsel to Dominion Resources and the Trust (which
may be in the form of a reliance letter) covering matters as are
customarily covered in opinions for an underwritten offering,
addressed to such holder or holders and the placement or sales
agent, if any, therefor and the underwriters, if any, thereof (it
being agreed that the matters to be covered by such opinions may
be subject to customary qualifications and exceptions) and dated
the effective date of such registration statement (and if such
registration statement contemplates an underwritten offering of a
part or all of the Registrable Securities, dated the date of the
closing under the underwriting agreement relating thereto); (C)
obtain a "cold comfort" letter or letters from the independent
certified public accountants of Dominion Resources and the Trust
addressed to the selling holders of Registrable Securities, the
placement or sales agent, if any, therefor and the underwriters,
if any, thereof, dated (i) the effective date of such
registration statement and (ii) the effective date of any
prospectus supplement to the prospectus included in such
registration statement; and (D) undertake such obligations
relating to expense reimbursement, indemnification and
contribution as are provided in Section 5 hereof;
(xvi) notify in writing each holder of Registrable
Securities of any proposal by Dominion Resources and the Trust
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<PAGE>
to amend or waive any provision of this Capital Securities
Exchange and Registration Rights Agreement pursuant to Section
8(g) hereof and of any amendment or waiver effected pursuant
thereto, each of which notices shall contain the text of the
amendment or waiver proposed or effected, as the case may be;
(xvii) in the event that any broker-dealer registered
under the Exchange Act shall underwrite any Registrable
Securities or participate as a member of an underwriting
syndicate or selling group or "assist in the distribution"
(within the meaning of the Rules and Bylaws of NASD) thereof,
whether as a holder of such Registrable Securities or as an
underwriter, a placement or sales agent or a broker or dealer in
respect thereof, or otherwise, assist such broker-dealer in
complying with the requirements of such Rules and Bylaws,
including, without limitation, by (A) if such Rules or Bylaws,
including Schedule E thereto (or any successor thereto), shall so
require, engaging a "qualified independent underwriter" (as
defined in such Schedule (or any successor thereto)) to
participate in the preparation of the registration statement
relating to such Registrable Securities, to exercise usual
standards of due diligence in respect thereto and, if any portion
of the offering contemplated by such registration statement is an
underwritten offering or is made through a placement or sales
agent, to recommend the yield of such Registrable Securities, (B)
indemnifying any such qualified independent underwriter to the
extent of the indemnification of underwriters provided in Section
5 hereof (or to such other customary extent as may be required by
such underwriter), and (C) providing such information to such
broker-dealer as may be required in order for such broker-dealer
to comply with the requirements of the Rules and Bylaws of NASD;
and
(xviii) comply with all applicable rules and
regulations of the Commission, and make generally available to
its holders of the Securities as soon as practicable but in any
event not later than eighteen months after the effective date of
such registration statement, an earnings statement of Dominion
Resources and its subsidiaries complying with Section 11(a) of
the Securities Act (including, at the option of Dominion
Resources, Rule 158 thereunder).
(e) In the event that Dominion Resources and the Trust would be
required, pursuant to Section 3(d)(vi)(F) above, to notify the selling holders
of Registrable Securities, the placement or sales agent, if any, therefor and
the managing underwriters, if any, thereof, Dominion
19
<PAGE>
Resources and the Trust shall without delay prepare and furnish to each such
holder, to each placement or sales agent, if any, and to each underwriter, if
any, a reasonable number of copies of a prospectus supplemented or amended so
that, as thereafter delivered to purchasers of Registrable Securities, such
prospectus shall conform in all material respects to the applicable requirements
of the Securities Act and the Trust Indenture Act and the rules and regulations
of the Commission promulgated thereunder and shall not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in
light of the circumstances then existing. Each broker-dealer holding Exchange
Securities and each holder of Registrable Securities agrees that upon receipt of
any notice from Dominion Resources and the Trust pursuant to Section
3(c)(iii)(E) or 3(d)(vi)(F) hereof, as the case may be, such holder shall
forthwith discontinue the disposition of Exchange Securities or Registrable
Securities, as the case may be, pursuant to the registration statement
applicable to such Exchange Securities or Registrable Securities, as the case
may be, until such holder shall have received copies of such amended or
supplemented prospectus, and if so directed by Dominion Resources and the Trust,
such holder shall deliver to Dominion Resources (at Dominion Resources' expense)
all copies, other than permanent file copies, then in such holder's possession
of the prospectus covering such Exchange Securities or Registrable Securities,
as the case may be, at the time of receipt of such notice.
(f) Dominion Resources and the Trust may require each holder of
Registrable Securities as to which any registration is being effected to furnish
in writing to Dominion Resources and the Trust such information regarding such
holder and such holder's intended method of distribution of such Registrable
Securities as Dominion Resources and the Trust may from time to time reasonably
request in writing. Each such holder agrees to notify Dominion Resources and
the Trust as promptly as practicable of any inaccuracy or change in information
previously furnished by such holder to Dominion Resources and the Trust or of
the occurrence of any event in either case as a result of which any prospectus
relating to such registration contains or would contain an untrue statement of a
material fact regarding such holder or such holder's intended method of
distribution of such Registrable Securities or omits to state any material fact
regarding such holder or such holder's intended method of distribution of such
Registrable Securities required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then existing,
and promptly to furnish to Dominion Resources and the Trust any additional
information required to correct and update any previously furnished information
or required so that such prospectus shall not contain, with respect to such
holder or the distribution of such Registrable Securities, an untrue statement
of a material fact or omit to state a material fact required
20
<PAGE>
to be stated therein or necessary to make the statements therein not misleading
in light of the circumstances then existing. Each such holder shall comply with
the provisions of the Securities Act applicable to such holder with respect to
the disposition by such holder of Registrable Securities covered by such
registration statement in accordance with the intended methods of disposition by
such holder set forth in such registration statement.
(g) Until the expiration two years after the Issue Date, Dominion
Resources will not, and will not permit any of its "affiliates" (as defined in
Rule 144 under the Securities Act) to, resell any of the Securities which
constitute "restricted securities" under Rule 144 that have been reacquired by
any of them except pursuant to an effective registration statement under the
Securities Act or any exemption therefrom; provided, however, that, for purposes
of this paragraph, "affiliates" shall not include the Purchasers or any of their
affiliates other than Dominion Resources and its subsidiaries, officers,
managers and directors.
(h) Dominion Resources and the Trust may require each holder of
Registrable Securities as to which a registration statement is being effected
pursuant to Section 2(a), as a condition to such holder's eligibility to
exchange the Registrable Securities for the Exchange Securities, that such
holder furnish to Dominion Resources and the Trust (or an agent thereof) in
writing information as to the number of "beneficial owners" (within the meaning
of Rule 13d-3 under the Exchange Act) on behalf of whom such holder holds the
Registrable Securities that such holder desires to exchange for the Exchange
Securities.
4. REGISTRATION EXPENSES.
---------------------
If Dominion Resources and the Trust file a registration statement pursuant
to Section 2(a) or Section 2(b), the following provisions shall apply: Dominion
Resources agrees to bear and to pay or cause to be paid promptly upon request
being made therefor all expenses incident to the performance by Dominion
Resources and the Trust for compliance with this Capital Securities Exchange and
Registration Rights Agreement, including, without limitation, (a) all Commission
and any NASD registration and filing fees and expenses, (b) all fees and
expenses in connection with the qualification of the Securities and the
Guarantee for offering and sale under the state securities and blue sky laws
referred to in Section 3(d)(x) hereof, including reasonable fees and
disbursements of counsel in connection with such qualifications, (c) all
expenses relating to the preparation, printing and reproduction of each
registration statement required to be filed hereunder, each prospectus included
therein or prepared for distribution pursuant hereto, each amendment or
supplement to the foregoing, and the certificates representing the Securities
and
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all documents relating hereto, (d) messenger and delivery expenses, (e) fees and
expenses of the Debenture Trustee under the Indenture, the Issuer Trustees under
the Trust Agreement and the Guarantee Trustee under the Guarantee Agreement and
of any escrow agent or custodian, (f) internal expenses (including, without
limitation, all salaries and expenses of Dominion Resources' officers and
employees performing legal or accounting duties), (g) fees, disbursements and
expenses of counsel and independent certified public accountants of Dominion
Resources and the Trust (including the expenses of any opinions or "cold
comfort" letters required by or incident to such performance and compliance),
(h) reasonable fees, disbursements and reasonable expenses (other than counsel
fees) of any "qualified independent underwriter" engaged pursuant to Section
3(d)(xvii) hereof, (i) reasonable fees, disbursements and reasonable expenses of
one counsel for the holders of Registrable Securities retained in connection
with a Shelf Registration, as selected by the holders of at least a majority in
aggregate Liquidation Amount, or the aggregate principal amount, as the case may
be, of the Registrable Securities being registered, and reasonable fees,
reasonable expenses and disbursements of any other persons, including special
experts, retained by Dominion Resources or the Trust in connection with such
registration (collectively, the "Registration Expenses"). To the extent that any
Registration Expenses are incurred, assumed or paid by any holder of Registrable
Securities or any placement or sales agent therefor or underwriter thereof,
Dominion Resources shall reimburse such person for the full amount of the
Registration Expenses so incurred, assumed or paid promptly after receipt of a
written request therefor. Notwithstanding the foregoing, the holders of the
Registrable Securities being registered shall pay all agency or brokerage fees
and commissions and underwriting discounts and commissions attributable to the
sale of such Registrable Securities and the fees and disbursements of any
counsel or other advisors or experts retained by such holders (severally or
jointly), other than the counsel and experts specifically referred to above,
transfer taxes on resale of any of the Securities by such holders and any
advertising or solicitation expenses other than expenses specifically referred
to above incurred by or on behalf of such holders in connection with any offers
they may make.
5. INDEMNIFICATION.
---------------
(a) Upon the registration of the Registrable Securities pursuant to
Section 2 hereof, and in consideration of the agreements of the Purchasers
contained herein, and as an inducement to the Purchasers to purchase the
Securities, the Trust and Dominion Resources, jointly and severally, agree to
indemnify and hold harmless each of the holders of Registrable Securities to be
included in such registration, and each person who participates as a placement
or sales agent or as an underwriter in any offering or sale of such Registrable
Securities and
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each person, if any, who controls such holder, or such placement or sales agent,
if any, or such underwriter, if any, within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act (each an "Indemnified Person") as follows:
(i) against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue
statement or alleged untrue statement of a material fact
contained in any registration statement under which such
Registrable Securities were registered under the Securities Act,
or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make
the statements therein not misleading or caused by any untrue
statement or alleged untrue statement of a material fact
contained in any preliminary, final or summary prospectus (or any
amendment or supplement thereto) contained in such registration
statement or caused by any omission or alleged omission to state
therein a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or
omission that was made in reliance upon and in conformity with
written information relating to such Indemnified Person furnished
to the Trust and Dominion Resources by, or on behalf of, such
Indemnified Person expressly for use in such registration
statement or such preliminary, final or summary prospectus (or
any amendment or supplement thereto);
(ii) against any and all losses, claims, damages and
liabilities whatsoever to the extent of the aggregate amount paid
in settlement of any litigation, or investigation or proceeding
by any governmental agency or body, commenced or threatened, or
of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission
(except as made in reliance upon and in conformity with
information relating to such Indemnified Person furnished by, or
on behalf of, such Indemnified Person as aforesaid), if such
settlement is effected with the written consent of the Trust and
Dominion Resources; and
(iii) against any and all expense whatsoever (including
the fees and disbursements of counsel chosen by such Indemnified
Person), reasonably incurred in investigating, preparing or
defending against any litigation,
23
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or investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon
any such untrue statement or omission, or any such alleged untrue
statement or omission (except as made in reliance upon and in
conformity with information relating to such Indemnified Person
furnished by, or on behalf of, such Indemnified Person as
aforesaid) to the extent that any such expense is not paid under
(i) or (ii) above;
provided, however, that indemnification with respect to any prospectus
shall not inure to the benefit of any holder of Registrable Securities or
Exchange Securities from whom the Person asserting any loss, claim, damage,
liability or expense purchased such Securities, if a copy of the prospectus
(as then amended or supplemented and furnished by Dominion Resources to
such holder) was not sent or given by or on behalf of such holder to such
person if such is required by law at or prior to the sale of such
Registrable Securities or Exchange Securities, as the case may be, and if
the prospectus (as so amended and supplemented) would have cured the defect
giving rise to such loss, claim, damage, liability or expense.
(b) Dominion Resources may require, as a condition to including any
Registrable Securities in any registration statement filed pursuant to Section 2
hereof and to entering into any placement or underwriting agreement with respect
thereto, that Dominion Resources shall have received an undertaking reasonably
satisfactory to them from the holder of such Registrable Securities and from
each placement agent or underwriter named in any such placement agreement or
underwriting agreement, severally and not jointly, to indemnify and hold
harmless the Trust and Dominion Resources and each person, if any, who controls
the Trust or Dominion Resources within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act against any and all loss,
claim, damage, liability and expense described in the indemnity contained in
subsection (a) of this Section, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in any registration
statement under which such Registrable Securities were registered under the
Securities Act, or any preliminary, final or summary prospectus contained
therein as furnished by the Trust or Dominion Resources to any such holder,
agent or underwriter (or any amendment or supplement thereto), in reliance upon
and in conformity with written information relating to such holder, or such
placement or sales agent, if any, or such underwriter, if any, furnished to the
Trust and Dominion Resources by or on behalf of such holder, or such placement
or sales agent, if any, or such underwriter, if any, expressly for use in such
registration statement or such
24
<PAGE>
preliminary, final or summary prospectus (or any amendment or supplement
thereto).
(c) Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder but failure to so notify an indemnifying party
shall not relieve it from any liability which it may have otherwise than on
account of this indemnity agreement. An indemnifying party may participate at
its own expense in the defense of such action. In no event shall the
indemnifying parties be liable for the fees and expenses of more than one
counsel (in addition to any local counsel) for all indemnified parties in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances;
provided, however, that when more than one of such holders, such placement or
sales agents, if any, or such underwriters, if any, is an indemnified party,
each such holder, placement or sales agent or such underwriter, as the case may
be, shall be entitled to separate counsel (in addition to any local counsel) in
each such jurisdiction to the extent such holder, placement or sales agent or
such underwriter, as the case may be, may have interests conflicting with those
of the other holder, placement or sales agent or such underwriter, as the case
may be. No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened proceeding
in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such proceeding.
(d) In order to provide for just and equitable contribution in
circumstances under which any of the indemnity provisions set forth in this
Section 5 is for any reason held to be unavailable to the indemnified parties
although applicable in accordance with its terms, Dominion Resources, the Trust,
and such holders, such placement or sales agents, if any, or such underwriters,
if any, shall contribute to the aggregate losses, liabilities, claims, damages
and expenses of the nature contemplated by such indemnity agreement incurred by
Dominion Resources, the Trust, and such holders, such placement or sales agents,
if any, or such underwriters, if any, as incurred; provided that no person
--------
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person that was
not guilty of such fraudulent misrepresentation. As between Dominion Resources,
the Trust, and such holders, such placement or sales agents, if any, or such
underwriters, if any, such parties shall contribute to such aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by such
indemnity agreement in such
25
<PAGE>
proportion as shall be appropriate to reflect the relative fault of Dominion
Resources and the Trust, on the one hand, and such holders, such placement or
sales agents, if any, or such underwriters, if any, on the other hand, with
respect to the statements or omissions which resulted in such loss, liability,
claim, damage or expense, or action in respect thereof, as well as any other
relevant equitable considerations. The relative fault of Dominion Resources and
the Trust, on the one hand, and of such holders, such placement or sales agents,
if any, or such underwriters, if any, on the other hand, shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by Dominion Resources or the Trust, on the one
hand, or by or on behalf of such holders, such placement or sales agents, if
any, or such underwriters, if any, on the other hand, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. Dominion Resources, the Trust and such holders, such
placement or sales agents, if any, or such underwriters, if any, agree that it
would not be just and equitable if contribution pursuant to this Section 5 were
to be determined by pro rata allocation or by any other method of allocation
that does not take into account the relevant equitable considerations. For
purposes of this Section 5, each person, if any, who controls any such holders,
such placement or sales agents, if any, and such underwriters, if any, within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act shall have the same rights to contribution as such holders, such placement
or sales agents, if any, and such underwriters, if any, and each person, if any,
who controls the Trust or Dominion Resources within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act shall have the same rights
to contribution as the Trust or Dominion Resources.
6. UNDERWRITTEN OFFERINGS.
----------------------
(a) Selection of Underwriters. If any of the Registrable Securities
-------------------------
covered by the Shelf Registration are to be sold pursuant to an underwritten
offering, the managing underwriter or underwriters thereof shall be designated
by the holders of at least a majority in aggregate Liquidation Amount of the
Registrable Securities to be included in such offering, provided that such
designated managing underwriter or underwriters is or are reasonably acceptable
to the Trust and Dominion Resources.
(b) Participation by Holders. Each holder of Registrable Securities
------------------------
hereby agrees with each other such holder that no such holder may participate in
any underwritten offering hereunder unless such holder (i) agrees to sell such
holder's Registrable Securities on the basis provided in any underwriting
arrangements approved by the persons
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<PAGE>
entitled hereunder to approve such arrangements and (ii) completes and executes
all questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements.
7. RULE 144 AND RULE 144A. For so long as Dominion Resources or the
----------------------
Trust is subject to the reporting requirements of Section 13 or 15 of the
Exchange Act and any Registrable Securities remain outstanding, Dominion
Resources and the Trust, as the case may be, will use their reasonable best
efforts to file the reports required to be filed by it under the Securities Act
and Section 13(a) or 15(d) of the Exchange Act and the rules and regulations
adopted by the Commission thereunder, that if it ceases to be so required to
file such reports, it will, upon the request of any Holder of Registrable
Securities (a) make publicly available such information as is necessary to
permit sales of their securities pursuant to Rule 144 under the Securities Act,
(b) deliver such information to a prospective purchaser as is necessary to
permit sales of their securities pursuant to Rule 144A under the Securities Act
and it will take such further action as any Holder of Registrable Securities may
reasonably request, and (c) take such further action that is reasonable in the
circumstances, in each case, to the extent required from time to time to enable
such Holder to sell its Registrable Securities without registration under the
Securities Act within the limitation of the exemptions provided by (i) Rule 144
under the Securities Act, as such rule may be amended from time to time, (ii)
Rule 144A under the Securities Act, as such rule may be amended from time to
time, or (iii) any similar rules or regulations hereafter adopted by the
Commission. Upon the request of any Holder of Registrable Securities, Dominion
Resources and the Trust will deliver to such Holder a written statement as to
whether it has complied with such requirements.
8. MISCELLANEOUS.
-------------
(a) No Inconsistent Agreements. Each of the Trust and Dominion
--------------------------
Resources represents, warrants, covenants and agrees that it has not granted,
and shall not grant, registration rights with respect to Registrable Securities
which would be inconsistent with the terms contained in this Capital Securities
Exchange and Registration Rights Agreement and that the Debenture Exchange and
Registration Rights Agreement and the Guarantee Exchange and Registration Rights
Agreement should be construed to be consistent with the terms hereof.
(b) Notices. All notices, requests, claims, demands, waivers and
-------
other communications hereunder shall be in writing and shall be deemed to have
been duly given when delivered by hand, if delivered personally or by courier,
or three days after being deposited in the mail (registered or certified mail,
postage prepaid, return receipt requested)
27
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as follows: if to the Trust or to Dominion Resources, then to Dominion
Resources, Inc., 901 E. Byrd Street, Richmond, Virginia 23219, Attention:
Treasurer, and if to a holder, to the address of such holder set forth in the
security register or other records of the Trust, or to such other address as any
party may have furnished to the others in writing in accordance herewith, except
that notices of change of address shall be effective only upon receipt.
(c) Parties in Interest. All the terms and provisions of this Capital
-------------------
Securities Exchange and Registration Rights Agreement shall be binding upon,
shall inure to the benefit of and shall be enforceable by the respective
successors and assigns of the parties hereto. In the event that any transferee
of any holder of Registrable Securities shall become a holder of Registrable
Securities, in any manner, whether by gift, bequest, purchase, operation of law
or otherwise, such transferee shall, without any further writing or action of
any kind, be deemed a party hereto for all purposes and such Registrable
Securities shall be held subject to all of the terms of this Capital Securities
Exchange and Registration Rights Agreement, and by taking and holding such
Registrable Securities such transferee shall be entitled to receive the benefits
of and be conclusively deemed to have agreed to be bound by and to perform all
of the terms and provisions of this Capital Securities Exchange and Registration
Rights Agreement. If Dominion Resources shall so request, any such successor,
assign or transferee shall agree in writing to acquire and hold the Registrable
Securities subject to all of the terms hereof.
(d) Survival. The respective indemnities, agreements,
--------
representations, warranties and each other provision set forth in this Capital
Securities Exchange and Registration Rights Agreement or made pursuant hereto
shall remain in full force and effect regardless of any investigation (or
statement as to the results thereof) made by or on behalf of any holder of
Registrable Securities, any director, officer or partner of such holder, any
agent or underwriter or any director, officer or partner thereof, or any
controlling person of any of the foregoing, and shall survive delivery of and
payment for the Registrable Securities pursuant to the Purchase Agreement and
the transfer and registration of Registrable Securities by such holder and the
consummation of an Exchange Offer. In addition, the respective indemnities,
representations and warranties set forth herein shall survive the termination
hereof.
(e) LAW GOVERNING. THIS CAPITAL SECURITIES EXCHANGE AND REGISTRATION
-------------
RIGHTS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK.
(f) Headings. The descriptive headings of the several Sections and
--------
paragraphs of this Capital Securities Exchange and
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<PAGE>
Registration Rights Agreement are inserted for convenience only, do not
constitute a part of this Capital Securities Exchange and Registration Rights
Agreement and shall not affect in any way the meaning or interpretation of this
Capital Securities Exchange and Registration Rights Agreement.
(g) Entire Agreement; Amendments. This Capital Securities Exchange and
----------------------------
Registration Rights Agreement and the other agreements referred to herein or
delivered pursuant hereto which form a part hereof contain the entire
understanding of the parties with respect to its subject matter. This Capital
Securities Exchange and Registration Rights Agreement and such other agreements
referred to herein supersede all prior agreements and understandings between the
parties with respect to its subject matter. This Capital Securities Exchange and
Registration Rights Agreement may be amended and the observance of any term of
this Capital Securities Exchange and Registration Rights Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively) only by a written instrument duly executed by Dominion Resources,
the Trust and the holders of at least a majority in aggregate principal amount
of the Registrable Securities at the time outstanding. Each holder of any
Registrable Securities at the time or thereafter outstanding shall be bound by
any amendment or waiver effected pursuant to this Section 8(g), whether or not
any notice, writing or marking indicating such amendment or waiver appears on
such Registrable Securities or is delivered to such holder.
(h) Inspection. For so long as this Capital Securities Exchange and
----------
Registration Rights Agreement shall be in effect, this Capital Securities
Exchange and Registration Rights Agreement and a complete list of the names and
addresses of all the registered holders of Registrable Securities shall be made
available for inspection and copying on any business day, during normal business
hours, by any holder of Registrable Securities at the offices of Dominion
Resources at the address thereof set forth in Section 8(b) above.
(i) Counterparts. This agreement may be executed by the parties in
------------
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same instrument.
(j) Termination. Except for the respective indemnities,
-----------
representations and warranties set forth herein, this Capital Securities
Exchange and Registration Rights Agreement shall terminate when all the
Securities, Exchange Securities and Registrable Securities cease to be
outstanding.
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<PAGE>
This Capital Securities Exchange and Registration Rights Agreement is
hereby executed as of the day and year first above written.
DOMINION RESOURCES, INC.
By: /s/ Edgar M. Roach, Jr.
---------------------------
Name: Edgar M. Roach, Jr.
Title: Executive Vice President
DOMINION RESOURCES CAPITAL TRUST I
/s/ G. Scott Hetzer
--------------------------------
as Administrative Trustee
MORGAN STANLEY & CO. INCORPORATED
As Representative of the Purchasers
named in Schedule I to the Purchase
Agreement
By: /s/ Harold J. Hendershot III
------------------------------
(Morgan Stanley & Co. Incorporated)
Acting severally, and not jointly and
severally, on behalf of themselves
and each of the Purchasers named in
Schedule I to the Purchase Agreement
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<PAGE>
EXHIBIT 4.11
DEBENTURE EXCHANGE AND
REGISTRATION RIGHTS AGREEMENT
DEBENTURE EXCHANGE AND REGISTRATION RIGHTS AGREEMENT, dated as of December
8, 1997, by and among Dominion Resources Capital Trust I, a Delaware business
trust (the "Trust"), Dominion Resources, Inc., a Virginia corporation ("Dominion
Resources"), and Morgan Stanley & Co. Incorporated, J.P. Morgan Securities
Inc., Lehman Brothers Inc. and Merrill Lynch, Pierce, Fenner & Smith
Incorporated (collectively, the "Purchasers") relating to the Securities of the
Trust.
1. CERTAIN DEFINITIONS. For purposes of this Debenture Exchange and
-------------------
Registration Rights Agreement, the following terms shall have the following
respective meanings:
(a) "Capital Securities Exchange and Registration Rights Agreement"
means the Capital Securities Exchange and Registration Rights Agreement in
respect of the Capital Securities dated as of December 8, 1997 among Dominion
Resources, the Trust and the Purchasers.
(b) "Commission" means the Securities and Exchange Commission, or any
other federal agency at the time administering the Exchange Act or the
Securities Act, whichever is the relevant statute for the particular purpose.
(c) "Debentures" means the 7.83% Junior Subordinated Deferrable
Interest Debentures due December 1, 2027 of Dominion Resources, to be issued
pursuant to the Indenture.
(d) "Effective Time", in the case of (i) an Exchange Offer, means the
date on which the Commission declares the Exchange Offer registration statement
effective or on which such registration statement otherwise becomes effective
and (ii) a Shelf Registration, means the date on which the Commission declares
the Shelf Registration effective or on which the Shelf Registration otherwise
becomes effective.
(e) "Exchange Act" means the Securities Exchange Act of 1934, or any
successor thereto, as amended from time to time.
(f) "Exchange Debentures" has the meaning set forth in Section 2(a)
hereof.
(g) "Exchange Guarantee" has the meaning set forth in Section 2(a)
hereof.
(h) "Exchange Offer" has the meaning set forth in Section 2(a)
hereof.
<PAGE>
(i) "Exchange Registration" has the meaning set forth in Section 3(c)
hereof.
(j) "Exchange Securities" has the meaning set forth in Section 2(a)
hereof.
(k) "Guarantee" means the Guarantee of Dominion Resources with
respect to the Securities, to the extent set forth in the Guarantee Agreement.
(l) "Guarantee Agreement" means the Capital Securities Guarantee
Agreement dated as of December 8, 1997 between Dominion Resources and The Chase
Manhattan Bank, a New York banking corporation, as Guarantee Trustee (together
with its successors and assigns "Guarantee Trustee") for the benefit of the
holders of the Securities.
(m) "Guarantee Exchange and Registration Rights Agreement" means the
Guarantee Exchange and Registration Rights Agreement in respect of the Guarantee
dated as of December 8, 1997 among Dominion Resources, the Trust and the
Purchasers.
(n) The term "holder" has the meaning set forth in the Capital
Securities Exchange and Registration Rights Agreement; provided, however, that
if all the Registrable Securities and all the Securities cease to be
outstanding, then it shall have the meaning set forth in the Indenture with
respect to the Debentures.
(o) "Indemnified Person" has the meaning set forth in Section 5(a)
hereof.
(p) "Indenture" means the Indenture dated as of December 1, 1997
between Dominion Resources and The Chase Manhattan Bank, as Debenture Trustee,
as supplemented by the First Supplemental Indenture dated as of December 1,
1997, and as further amended or supplemented from time to time.
(q) "Issue Date" means December 8, 1997.
(r) "Liquidation Amount" means the stated liquidation preference of
the Securities.
(s) "Material Event" means the happening of any event or the failure
of any event to occur or the discovery of any facts or otherwise (each a
"Material Event"), during the period that a shelf registration statement must be
kept effective as set forth in Section 2(b) which makes any statement made in
such shelf registration statement or the related
2
<PAGE>
prospectus untrue in any material respect or which causes such shelf
registration statement or prospectus to omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading.
(t) "New Guarantee Agreement" has the meaning set forth in the
Guarantee Exchange and Registration Rights Agreement.
(u) The term "person" means any individual, corporation, estate,
partnership, joint venture, association, joint stock company, limited liability
company, trust, unincorporated association or government or any agency or
political subdivision hereof, or any other entity of whatever nature.
(v) "Purchase Agreement" means the Purchase Agreement dated December
3, 1997 among Dominion Resources, the Trust and the Purchasers.
(w) "Registrable Securities" has the meaning set forth in the Capital
Securities Exchange and Registration Rights Agreement; provided, however, that
if all the Registrable Securities and all the Securities cease to be
outstanding, then it shall mean the Debentures which have not been sold,
directly or indirectly, pursuant to an effective registration statement under
the Securities Act.
(x) "Registration Default" has the meaning set forth in Section 2(c)
hereof.
(y) "Registration Expenses" has the meaning set forth in Section 4
hereof.
(z) "Resale Period" has the meaning set forth in the Capital
Securities Exchange and Registration Rights Agreement.
(aa) "Rule 144" has the meaning set forth in the Trust Agreement.
(bb) "Securities" means, collectively, the $250,000,000 aggregate
Liquidation Amount of the 7.83% Capital Securities, Liquidation Amount $1,000
per Capital Security, of the Trust to be issued and sold to the Purchasers, and
any securities issued in exchange therefor or in lieu thereof pursuant to the
Trust Agreement or the Exchange Offer; provided, however, that if all the
Registrable Securities and all the Securities cease to be outstanding, then it
shall mean the Debentures which have been registered under the Securities Act.
3
<PAGE>
(cc) "Securities Act" means the Securities Act of 1933, or any
successor thereto, as amended from time to time.
(dd) "Shelf Registration" has the meaning set forth in Section 2(b)
hereof.
(ee) "Special Interest" has the meaning set forth in Section 2(c)
hereof.
(ff) "Trust Agreement" means the Amended and Restated Trust Agreement
dated as of December 8, 1997 among Dominion Resources, as Depositor, The Chase
Manhattan Bank, as Property Trustee, Chase Manhattan Bank Delaware, as Delaware
Trustee, the Administrative Trustees named therein and the holders, from time to
time, of undivided beneficial interests in the assets of the Trust.
(gg) "Trust Indenture Act" means the Trust Indenture Act of 1939, or
any successor thereto, and the rules, regulations and forms promulgated
thereunder, as amended from time to time.
Unless the context otherwise requires, any reference herein to a
"Section"or "clause" refers to a Section or clause, as the case may be, of this
Debenture Exchange and Registration Rights Agreement, and the words "herein,"
"hereof" and "hereunder" and other words of similar import refer to this
Debenture Exchange and Registration Rights Agreement as a whole and not to any
particular Section or other subdivision.
2. REGISTRATION UNDER THE SECURITIES ACT.
-------------------------------------
(a) If Dominion Resources and the Trust file a registration statement
pursuant to Section 2(a) of the Capital Securities Exchange and Registration
Rights Agreement, then Dominion Resources and the Trust agree, jointly and
severally, to include in such registration statement an offer to exchange (the
"Exchange Offer") all of the Debentures for a like aggregate principal amount of
a new series of junior subordinated deferrable interest debentures of Dominion
Resources which are substantially identical to the Debentures (and which are
entitled to the benefits of the Indenture which will be qualified under the
Trust Indenture Act) except that they have been registered pursuant to an
effective registration statement under the Securities Act and such new
debentures will not contain provisions for Special Interest or provisions
restricting transfer in the absence of registration under the Securities Act
(such new debentures hereinafter called "Exchange Debentures"). Such
registration statement shall also relate to, and the consummation of the
Exchange Offer shall be conditioned upon the consummation of, an offer to
exchange the Securities for substantially identical capital securities of the
Trust pursuant to the Capital Securities Exchange and Registration Rights
Agreement (the "Exchange Securities") and to an offer to exchange the Guarantee
for a substantially identical guarantee of Dominion Resources pursuant to the
Guarantee Exchange and Registration
4
<PAGE>
Rights Agreement (the "Exchange Guarantee"). Dominion Resources and the Trust
agree, jointly and severally, to use their reasonable best efforts to cause such
registration statement to become effective under the Securities Act within 180
days of the Issue Date. The Exchange Offer will be registered under the
Securities Act on the appropriate form. The Exchange Offer shall be deemed to
have been completed upon the completion of the exchange of the Exchange
Debentures for all the Debentures pursuant to the Exchange Offer.
(b) If (i) Dominion Resources and the Trust file a "shelf"
registration statement pursuant to Section 2(b) of the Capital Securities
Exchange and Registration Rights Agreement without also filing a registration
statement pursuant to Section 2(a) thereof or (ii) none of the Securities or the
Registrable Securities is outstanding and the Exchange Offer has not been
effected, then in the case of clause (i), such "shelf" registration statement
shall provide for the registration of the Debentures and, in the case of clause
(ii) Dominion Resources shall file under the Securities Act, as soon as
practicable, a "shelf" registration statement providing for the registration of,
and the sale on a continuous or delayed basis by the holders of, all of the
Registrable Securities, pursuant to Rule 415 under the Securities Act and/or any
similar rule that may be adopted by the Commission (in each case, the "Shelf
Registration"). In the case of clause (i) only, the Shelf Registration shall
also provide for the registration of the Securities pursuant to the Capital
Securities Exchange and Registration Rights Agreement and for the registration
of the Guarantee pursuant to the Guarantee Exchange and Registration Rights
Agreement. Dominion Resources and, if applicable, the Trust agree, jointly and
severally, to use their reasonable best efforts to cause the Shelf Registration
to become or be declared effective and to keep such Shelf Registration
continuously effective for a period ending on the earlier of (A) the second
anniversary of the Issue Date or (B) such time as there are no longer any
Registrable Securities outstanding. Dominion Resources and, if applicable, the
Trust further agree, jointly and severally, to supplement or make amendments to
the Shelf Registration, as and when required by the rules, regulations or
instructions applicable to the registration form used by Dominion Resources and,
if applicable, the Trust for such Shelf Registration or by the Securities Act or
rules and regulations thereunder for shelf registration, and Dominion Resources
and, if applicable, the Trust agree, jointly and severally, to furnish to the
holders of the Registrable Securities copies of any such supplement or amendment
prior to its being used and/or filed with the Commission.
5
<PAGE>
(c) In the event that (i) Dominion Resources and, if applicable, the
Trust have not filed the registration statement relating to the Exchange Offer
on or before the 150th day after the Issue Date, or (ii) such registration
statement has not become effective or been declared effective by the Commission
or, if applicable, a Shelf Registration has not been filed on or before the
180th day after the Issue Date, or (iii) any of the Exchange Offer, the exchange
offers contemplated by the Capital Securities Exchange and Registration Rights
Agreement and the exchange offer contemplated by the Guarantee Exchange and
Registration Rights Agreement has not been completed or, if applicable, a Shelf
Registration is not declared effective within 210 days after the Issue Date (if
the Exchange Offer is then required to be made) or (iv) any registration
statement required by Section 2(b) is filed and declared effective but shall
thereafter cease to be effective at any time prior to the second anniversary of
the Issue Date (other than after such time as all Securities have been disposed
of thereunder or otherwise cease to be Registrable Securities within the meaning
of this Agreement), (each such event referred to in clauses (i) through (iv), a
"Registration Default"), then interest will accrue (in addition to the stated
interest rate on the Debentures) at the rate of 0.25% per annum on the principal
amount of the Debentures (the "Special Interest"), commencing on (w) the 151st
day after the Issue Date in the case of (i) above, (x) the 181st day after the
Issue Date in the case of (ii) above, (y) the 211th day after the Issue Date in
the case of (iii) above, or (z) the day after such shelf registration statement
ceases to be effective in the case of (iv) above; provided, that if, in the case
of (iv) above, such shelf registration statement ceases to be effective as a
result of a Material Event, no Special Interest shall accumulate or accrue so
long as such shelf registration statement again becomes effective within 60 days
of the date notice of such Material Event was received by the holders of the
Securities, the Guarantee and the Debentures; and provided further, that if such
shelf registration statement does not again become effective within such 60-day
period, Special Interest shall accrue commencing on the 61st day after such
shelf registration statement ceases to be effective.
Notwithstanding the foregoing, the additional interest rate on the
Debentures may not exceed 0.25% per annum; provided that (1) upon the filing of
the registration statement (in the case of (i) above), (2) upon the
effectiveness of the registration statement or the filing of a shelf
registration statement (in the case of (ii) above), (3) upon the completion of
the exchange of the Securities, the Guarantee and the Debentures or upon the
effectiveness of the shelf registration statement (in the case of (iii) above),
(4) upon the effectiveness of the shelf registration statement which had ceased
to remain effective (in the case of (iv) above), (5) at the time when the
Securities can be sold by non-affiliates pursuant to Rule 144 under the
Securities Act without any
6
<PAGE>
limitation under clauses (c), (e), (f) and (h) of Rule 144, (6) at the second
anniversary of the date the Securities are issued, or (7) the date as of which
all securities are sold pursuant to the shelf registration statement, additional
interest on the Debentures shall cease to accrue. Such Additional Interest will
be payable in cash semi-annually in arrears on each June 1 and December 1 in
accordance with, and subject to the deferral provisions of, the Indenture and
the Trust Agreement, respectively. Special Interest, if any, will be computed on
the basis of a 365 or 366 day year, as the case may be, and the number of days
actually elapsed.
(d) Any reference herein to a registration statement shall be deemed
to include any document incorporated therein by reference as of the applicable
Effective Time and any reference herein to any post-effective amendment to a
registration statement shall be deemed to include any document incorporated
therein by reference as of a time after such Effective Time.
3. REGISTRATION PROCEDURES. If Dominion Resources and, if applicable,
-----------------------
the Trust file a registration statement pursuant to Section 2(a) or Section
2(b), the following provisions shall apply:
(a) At or before the Effective Time of the Exchange Offer or the
Shelf Registration, as the case may be, Dominion Resources shall qualify the
Indenture, the New Guarantee Agreement or the Guarantee Agreement (as
applicable) if applicable, and the Trust Agreement under the Trust Indenture
Act.
(b) In the event that such qualification would require the
appointment of a new trustee under any of the Indenture, the New Guarantee
Agreement, the Guarantee Agreement or the Trust Agreement, such new trustee
shall be appointed thereunder pursuant to the applicable provisions thereof.
(c) In connection with the joint and several obligations of Dominion
Resources and the Trust with respect to the registration of the Exchange
Securities, the Exchange Guarantee and the Exchange Debentures, as contemplated
by Section 2(a) (the "Exchange Registration"), if applicable, Dominion Resources
and the Trust shall, as soon as reasonably possible (or as otherwise specified):
(i) prepare and file with the Commission, as soon as
practicable but no later than 150 days after the Issue Date, a registration
statement with respect to the Exchange Registration on any form which may
be utilized by Dominion Resources and the Trust and which shall permit the
Exchange Offer and resales of Exchange Securities by broker-dealers
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during the Resale Period to be effected as contemplated by Section 2(a)
hereof, and use its reasonable best efforts to cause such registration
statement to become effective as soon as practicable thereafter;
(ii) as soon as practicable prepare and file with the Commission
such amendments and supplements to such registration statement and the
prospectus included therein as may be necessary to effect and maintain the
effectiveness of such registration statement for the periods and purposes
contemplated in Section 2(a) hereof and as may be required by the
applicable rules and regulations of the Commission and the instructions
applicable to the form of such registration statement, and promptly provide
each broker-dealer holding Exchange Securities with such number of copies
of the prospectus included therein (as then amended or supplemented), in
conformity in all material respects with the requirements of the Securities
Act and the Trust Indenture Act and the rules and regulations of the
Commission promulgated thereunder, as such broker-dealer reasonably may
request prior to the expiration of the Resale Period, for use in connection
with resales of Exchange Securities;
(iii) promptly notify each broker-dealer that has requested or
received copies of the prospectus included in such registration statement,
and confirm such advice in writing, (A) when such registration statement
or the prospectus included therein or any prospectus amendment or
supplement or post-effective amendment has become effective, (B) of the
receipt of any comments by the Commission and by the Blue Sky or securities
commissioner or regulator of any state with respect thereto or any request
by the Commission for amendments or supplements to such registration
statement or prospectus or for additional information, (C) of the issuance
by the Commission of any stop order suspending the effectiveness of such
registration statement or the initiation or threatening by the Commission
of any proceedings for that purpose, (D) of the receipt by either Dominion
Resources or the Trust of any notification with respect to the suspension
of the qualification of the Exchange Securities and the Exchange Guarantee
for sale in any United States jurisdiction or the initiation or, to
Dominion Resources' or the Trust's knowledge, threatening of any proceeding
for such purpose, or (E) at any time during the Resale Period when a
prospectus is required to be delivered under the Securities Act, that such
registration statement, prospectus, prospectus amendment or supplement or
post-effective amendment does not conform in all
8
<PAGE>
material respects to the applicable requirements of the Securities Act and
the Trust Indenture Act and the rules and regulations of the Commission
promulgated thereunder or contains an untrue statement of a material fact
or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing;
(iv) in the event that Dominion Resources and the Trust would be
required, pursuant to Section 3(c)(iii)(E) above, to notify any broker-
dealers holding Exchange Securities, without delay prepare and furnish to
each such holder a reasonable number of copies of a prospectus supplemented
or amended so that, as thereafter delivered to purchasers of such Exchange
Securities during the Resale Period, such prospectus shall conform in all
material respects to the applicable requirements of the Securities Act and
the Trust Indenture Act and the rules and regulations of the Commission
promulgated thereunder and shall not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in light
of the circumstances then existing;
(v) use their reasonable best efforts to obtain the withdrawal
of any order suspending the effectiveness of such registration statement or
any post-effective amendment thereto at the earliest practicable date;
(vi) use their reasonable best efforts to (A) register or
qualify the Exchange Securities and the Exchange Guarantee under the
securities laws or blue sky laws of such jurisdictions as are contemplated
by Section 2(a) no later than the commencement of the Exchange Offer, (B)
keep such registrations or qualifications in effect and comply with such
laws so as to permit the continuance of offers, sales and dealings therein
in such jurisdictions until the expiration of the Resale Period and (C)
take any and all other actions as may be reasonably necessary or advisable
to enable each broker-dealer holding Exchange Securities to consummate the
disposition thereof in such jurisdictions; provided, however, that neither
Dominion Resources nor the Trust shall be required for any such purpose to
(1) qualify to do business in any jurisdiction wherein it would not
otherwise be required to qualify but for the requirements of this Section
3(c)(vi), (2) consent to general service of process in any such
jurisdiction or (3) in the case of Dominion Resources, make any changes to
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<PAGE>
its Articles of Incorporation or Bylaws or any agreement between it and its
stockholders or in the case of the Trust, make any changes to the Trust
Agreement;
(vii) provide a CUSIP number for all Exchange Securities, not
later than the applicable Effective Time; and
(viii) comply with all applicable rules and regulations of the
Commission, and make generally available to all holders of Securities as
soon as practicable but no later than eighteen months after the Effective
Time, an earnings statement of Dominion Resources and its subsidiaries
complying with Section 11 (a) of the Securities Act (including, at the
option of Dominion Resources, Rule 158 thereunder).
(d) In connection with the joint and several obligations of Dominion
Resources and the Trust with respect to the Shelf Registration, if applicable,
Dominion Resources and, if applicable, the Trust shall use their reasonable best
efforts to cause the Shelf Registration to become effective to permit the sale
of the Registrable Securities by the holders thereof in accordance with the
intended method or methods of distribution thereof described in the Shelf
Registration. In connection therewith, Dominion Resources and, if applicable,
the Trust shall as soon as reasonably possible (or as otherwise specified):
(i) prepare and file with the Commission, as soon as
practicable, a registration statement with respect to the Shelf
Registration on any form which may be utilized by Dominion
Resources and, if applicable, the Trust and which shall permit
the disposition of the Registrable Securities in accordance with
the intended method or methods thereof, as specified in writing
to Dominion Resources and, if applicable, the Trust by the
holders of the Registrable Securities and use their reasonable
best efforts to cause such registration statement to become
effective as soon as practicable thereafter;
(ii) as soon as practicable, prepare and file with the
Commission such amendments and supplements to such registration
statement and the prospectus included therein as may be necessary
to effect and maintain the effectiveness of such registration
statement for the period specified in Section 2(b) hereof and as
may be required by the applicable rules and regulations of the
Commission and the instructions applicable to the form of such
registration statement and furnish to the holders of the
Registrable Securities copies of
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<PAGE>
any such supplement or amendment simultaneously with or prior to
its being used or filed with the Commission;
(iii) comply with the provisions of the Securities Act
applicable to Dominion Resources or, if applicable, the Trust in
connection with the disposition of all of the Registrable
Securities covered by such registration statement in accordance
with the intended methods of disposition by the holders thereof,
set forth in such registration statement;
(iv) provide (A) the holders of the Registrable
Securities to be included in such registration statement and not
more than one counsel for all the holders of such Registrable
Securities, (B) the underwriters (which term, for purposes of
this Debenture Exchange and Registration Rights Agreement, shall
include a person deemed to be an underwriter within the meaning
of Section 2(11) of the Securities Act), if any, thereof, (C) the
sales or placement agent, if any, therefor and (D) one counsel
for such underwriters or agents, if any, reasonable opportunity
to participate in the preparation of such registration statement,
each prospectus included therein or filed with the Commission,
and each amendment or supplement thereto;
(v) for a reasonable period prior to the filing of
such registration statement, and throughout the period specified
in Section 2(b), make available at reasonable times at Dominion
Resources' principal place of business or such other reasonable
place for inspection by the persons referred to in Section
3(d)(iv) who shall certify to Dominion Resources and, if
applicable, the Trust that they have a current intention to sell
the Registrable Securities pursuant to the Shelf Registration
such financial and other information and books and records of
Dominion Resources and, if applicable, the Trust, and cause the
officers, employees, counsel and independent certified public
accountants of Dominion Resources and, if applicable, the Trust
to respond to such inquiries, as shall be reasonably necessary,
in the judgment of the respective counsel referred to in such
Section, to conduct a reasonable investigation within the meaning
of Section 11 of the Securities Act; provided, however, that each
such party will be required to maintain in confidence and not to
disclose to any other person any information or records
reasonably designated by Dominion Resources as being
confidential, until such time as (A) such information becomes a
matter of public record (whether by virtue of its inclusion in
such registration statement or otherwise, except by
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<PAGE>
disclosure by such party in breach of this Agreement), or (B)
such person shall be required so to disclose such information
pursuant to the subpoena or order of any court or other
governmental agency or body having jurisdiction over the matter
(subject to, and only to the extent required by, the requirements
of such order, and only after such person shall have given
Dominion Resources prompt prior written notice of such
requirement);
(vi) promptly notify the selling holders of
Registrable Securities, the sales or placement agent, if any,
therefor and the managing underwriter or underwriters, if any,
thereof and confirm such advice in writing, (A) when such
registration statement or the prospectus included therein or any
prospectus amendment or supplement or post-effective amendment
has become effective, (B) of any comments by the Commission and
by the Blue Sky or securities commissioner or regulator of any
state with respect thereto or any request by the Commission for
amendments or supplements to such registration statement or
prospectus or for additional information, (C) of the issuance by
the Commission of any stop order suspending the effectiveness of
such registration statement or the initiation or threatening by
the Commission of any proceedings for that purpose, (D) if at any
time the joint and several representations and warranties of
Dominion Resources and, if applicable, the Trust contemplated by
Section 3(d)(xv)(A) cease to be true and correct in all material
respects, (E) of the receipt by either Dominion Resources or the
Trust of any notification with respect to the suspension of the
qualification of the Registrable Securities and, if applicable,
the Guarantee, for sale in any jurisdiction or the initiation or,
to Dominion Resources' or the Trust's knowledge, threatening of
any proceeding for such purpose, or (F) at any time when a
prospectus is required to be delivered under the Securities Act,
that such registration statement, prospectus, prospectus
amendment or supplement or post-effective amendment, or any
document incorporated by reference in any of the foregoing, does
not conform in all material respects to the applicable
requirements of the Securities Act and the Trust Indenture Act
and the rules and regulations of the Commission promulgated
thereunder or contains an untrue statement of a material fact or
omits to state any material fact required to be stated therein or
necessary to make the statements therein not misleading in light
of the circumstances then existing;
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<PAGE>
(vii) use their best efforts to obtain the withdrawal
of any order suspending the effectiveness of such registration
statement or any post-effective amendment thereto at the earliest
practicable date;
(viii) if requested by any managing underwriter or
underwriters, any placement or sales agent or any holder or
counsel for the holders of Registrable Securities, promptly
incorporate in a prospectus supplement or post-effective
amendment such information as is required by the applicable rules
and regulations of the Commission and as such managing
underwriter or underwriters, such agent or such holder specifies
should be included therein relating to the terms of the sale of
such Registrable Securities, including, without limitation,
information with respect to the Liquidation Amount or the
principal amount, as the case may be, of Registrable Securities
being sold by any holder or agent or to any underwriters, the
name and description of such holder, agent or underwriter, the
offering price of such Registrable Securities and any discount,
commission or other compensation payable in respect thereof, the
purchase price being paid therefor by such underwriters and with
respect to any other terms of the offering of the Registrable
Securities, to be sold by such holder or agent or to such
underwriters; and make all required filings of such prospectus
supplement or post-effective amendment promptly after
notification of the matters to be incorporated in such prospectus
supplement or post-effective amendment;
(ix) furnish to each holder of Registrable
Securities, each placement or sales agent, if any, therefor, each
underwriter, if any, thereof and the respective counsel referred
to in Section 3(d)(iv) a conformed copy of such registration
statement, each such amendment and supplement thereto and such
number of copies of such registration statement and of the
prospectus included in such registration statement, in conformity
with the requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission
promulgated thereunder, and such other documents, as such holder,
agent, if any, and underwriter, if any, may reasonably request in
order to facilitate the offering and disposition of the
Registrable Securities owned by such holder, offered or sold by
such agent or underwritten by such underwriter and to permit such
holder, agent and underwriter to satisfy the prospectus delivery
requirements of the Securities Act; and each of Dominion
Resources and, if applicable, the Trust hereby consents to the
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<PAGE>
use of such prospectus and any amendment or supplement thereto by
each such holder and by any such agent and underwriter, in each
case in the form most recently provided to such party by Dominion
Resources and the Trust, in connection with the offering and sale
of the Registrable Securities covered by the prospectus or any
supplement or amendment thereto;
(x) use their reasonable best efforts to (A)
register or qualify the Registrable Securities to be included in
such registration statement and, if applicable, the Guarantee
under such securities laws or blue sky laws of such jurisdictions
as any holder of such Registrable Securities and each placement
or sales agent, if any, therefor and underwriter, if any, thereof
shall reasonably request, (B) keep such registrations or
qualifications in effect and comply with such laws so as to
permit the continuance of offers, sales and dealings therein in
such jurisdictions during the period the Shelf Registration is
required to remain effective under Section 2(b) above and (C)
take any and all other actions as may be reasonably necessary or
advisable to enable each such holder, agent, if any, and
underwriter, if any, to consummate the disposition in such
jurisdictions of Registrable Securities; provided, however, that
neither Dominion Resources nor, if applicable, the Trust shall be
required for any such purpose to (1) qualify to do business in
any jurisdiction wherein it would not otherwise be required to
qualify but for the requirements of this Section 3(d)(x), (2)
consent to general service of process in any such jurisdiction,
(3) in the case of Dominion Resources, make any changes to its
Articles of Incorporation or Bylaws or any agreement between it
and its shareholders or, if applicable, in the case of the Trust,
make any changes to the Trust Agreement;
(xi) use their reasonable best efforts to obtain the
consent or approval of each governmental agency or authority,
whether federal, state or local, which may be required to effect
the Shelf Registration or the offering or sale in connection
therewith or to enable the selling holder or holders to offer, or
to consummate the disposition of, their Registrable Securities;
(xii) cooperate with the holders of the Registrable
Securities and the managing underwriters, if any, to facilitate
the timely preparation and delivery of certificates representing
Registrable Securities to be sold, which certificates shall be
printed, lithographed or engraved, or
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<PAGE>
produced by any combination of such methods, and which shall not
bear any restrictive legends; and, in the case of an underwritten
offering, enable such Registrable Securities to be in such
denominations and registered in such names as the managing
underwriters may request at least two business days prior to any
sale of the Registrable Securities;
(xiii) provide a CUSIP number for all Registrable
Securities, not later than the applicable Effective Time;
(xiv) enter into any underwriting agreement,
engagement letter, agency agreement, "best efforts" underwriting
agreement or similar agreement, as appropriate, including
(without limitation) provisions elating to indemnification and
contribution substantially the same as those set forth in Section
5 hereof, and take such other actions in connection therewith
reasonably requested in order to expedite or facilitate the
disposition of such Registrable Securities; provided, that
Dominion Resources and, if applicable, the Trust shall not be
required to (i) enter into any such agreement more than once with
respect to all of the Registrable Securities and may delay
entering into such agreement until the consummation of any
underwritten public offering which Dominion Resources and, if
applicable, the Trust shall have then undertaken or (ii) enter
into any engagement letter, agency agreement, "best effort"
underwriting agreement or similar agreements whatsoever with
respect to the Registrable Securities, and provided further, that
Dominion Resources and, if applicable, the Trust shall not be
obligated to enter into any such agreement with a broker-dealer
which results in the need for a "qualified independent
underwriter" (within the meaning of the Rules of Fair Practice
and the Bylaws of National Association of Securities Dealers,
Inc. ("NASD") or any successor thereto, as amended from time to
time (the "Rules and Bylaws of NASD"));
(xv) whether or not an agreement of the type
referred to in Section (3)(d)(xiv) hereof is entered into and
whether or not any portion of the offering contemplated by such
registration statement is an underwritten offering or is made
through a placement or sales agent or any other entity, (A) make
such representations and warranties to the holders of such
Registrable Securities and the placement or sales agent, if any,
therefor and the underwriters, if any, thereof as are customarily
made with respect to the offering of debt securities pursuant to
any appropriate agreement or to a registration statement on the
applicable form under the
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<PAGE>
Securities Act; (B) obtain an opinion or opinions of counsel to
Dominion Resources and, if applicable, the Trust, (which may be
in the form of a reliance letter) covering matters as are
customarily covered in opinions for an underwritten offering,
addressed to such holder or holders and the placement or sales
agent, if any, therefor and the underwriters, if any, thereof (it
being agreed that the matters to be covered by such opinions may
be subject to customary qualifications and exceptions) and dated
the effective date of such registration statement (and if such
registration statement contemplates an underwritten offering of a
part or all of the Registrable Securities, dated the date of the
closing under the underwriting agreement relating thereto); (C)
obtain a "cold comfort" letter or letters from the independent
certified public accountants of Dominion Resources and, if
applicable, the Trust addressed to the selling holders of
Registrable Securities, the placement or sales agent, if any,
therefor and the underwriters, if any, thereof, dated (i) the
effective date of such registration statement and (ii) the
effective date of any prospectus supplement to the prospectus
included in such registration statement or post-effective
amendment to such registration statement; and (D) undertake such
obligations relating to expense reimbursement, indemnification
and contribution as are provided in Section 5 hereof;
(xvi) notify in writing each holder of Registrable
Securities of any proposal by Dominion Resources and the Trust to
amend or waive any provision of this Debenture Exchange and
Registration Rights Agreement pursuant to Section 8(g) hereof and
of any amendment or waiver effected pursuant thereto, each of
which notices shall contain the text of the amendment or waiver
proposed or effected, as the case may be;
(xvii) in the event that any broker-dealer registered
under the Exchange Act shall underwrite any Registrable
Securities or participate as a member of an underwriting
syndicate or selling group or "assist in the distribution"
(within the meaning of the Rules and Bylaws of NASD) thereof,
whether as a holder of such Registrable Securities or as an
underwriter, a placement or sales agent or a broker or dealer in
respect thereof, or otherwise, assist such broker- dealer in
complying with the requirements of such Rules and Bylaws,
including, without limitation, by (A) if such Rules or Bylaws,
including Schedule E thereto (or any successor thereto), shall so
require, engaging a "qualified independent underwriter" (as
defined in such Schedule (or any
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successor thereto)) to participate in the preparation of the
registration statement relating to such Registrable Securities,
to exercise usual standards of due diligence in respect thereto
and, if any portion of the offering contemplated by such
registration statement is an underwritten offering or is made
through a placement or sales agent, to recommend the yield of
such Registrable Securities, (B) indemnifying any such qualified
independent underwriter to the extent of the indemnification of
underwriters provided in Section 5 hereof (or to such other
customary extent as may be required by such underwriter), and (C)
providing such information to such broker-dealer as may be
required in order for such broker-dealer to comply with the
requirements of the Rules and Bylaws of NASD; and
(xviii) comply with all applicable rules and
regulations of the Commission, and make generally available to
its holders of the Securities as soon as practicable but in any
event not later than eighteen months after the effective date of
such registration statement, an earnings statement of Dominion
Resources and its subsidiaries complying with Section 11(a) of
the Securities Act (including, at the option of Dominion
Resources, Rule 158 thereunder).
(e) In the event that Dominion Resources and, if applicable, the
Trust would be required, pursuant to Section 3(d)(vi)(F) above, to notify the
selling holders of Registrable Securities, the placement or sales agent, if any,
therefor and the managing underwriters, if any, thereof, Dominion Resources and,
if applicable, the Trust shall without delay prepare and furnish to each such
holder, to each placement or sales agent, if any, and to each underwriter, if
any, a reasonable number of copies of a prospectus supplemented or amended so
that, as thereafter delivered to purchasers of Registrable Securities, such
prospectus shall conform in all material respects to the applicable requirements
of the Securities Act and the Trust Indenture Act and the rules and regulations
of the Commission promulgated thereunder and shall not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in
light of the circumstances then existing. Each broker-dealer holding Exchange
Securities and each holder of Registrable Securities agrees that upon receipt of
any notice from Dominion Resources and, if applicable, the Trust pursuant to
Section 3(c)(iii)(E) or 3(d)(vi)(F) hereof, as the case may be, such holder
shall forthwith discontinue the disposition of Exchange Securities or
Registrable Securities, as the case may be, pursuant to the registration
statement applicable to such Exchange Securities or Registrable Securities, as
the case may be, until such holder shall have received copies of such amended
17
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or supplemented prospectus, and if so directed by Dominion Resources and, if
applicable, the Trust, such holder shall deliver to Dominion Resources (at
Dominion Resources' expense) all copies, other than permanent file copies, then
in such holder's possession of the prospectus covering such Exchange Securities
or Registrable Securities, as the case may be, at the time of receipt of such
notice.
(f) Dominion Resources and, if applicable, the Trust may require each
holder of Registrable Securities as to which any registration is being effected
to furnish in writing to Dominion Resources and, if applicable, the Trust such
information regarding such holder and such holder's intended method of
distribution of such Registrable Securities as Dominion Resources and the Trust
may from time to time reasonably request in writing. Each such holder agrees to
notify Dominion Resources and, if applicable, the Trust as promptly as
practicable of any inaccuracy or change in information previously furnished by
such holder to Dominion Resources and, if applicable, the Trust or of the
occurrence of any event in either case as a result of which any prospectus
relating to such registration contains or would contain an untrue statement of a
material fact regarding such holder or such holder's intended method of
distribution of such Registrable Securities or omits to state any material fact
regarding such holder or such holder's intended method of distribution of such
Registrable Securities required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then existing,
and promptly to furnish to Dominion Resources and, if applicable, the Trust any
additional information required to correct and update any previously furnished
information or required so that such prospectus shall not contain, with respect
to such holder or the distribution of such Registrable Securities, an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in
light of the circumstances then existing. Each such holder shall comply with
the provisions of the Securities Act applicable to such holder with respect to
the disposition by such holder of Registrable Securities covered by such
registration statement in accordance with the intended methods of disposition by
such holder set forth in such registration statement.
(g) Until the expiration two years after the Issue Date, Dominion
Resources will not, and will not permit any of its "affiliates" (as defined in
Rule 144 under the Securities Act) to, resell any of the Securities which
constitute "restricted securities" under Rule 144 that have been reacquired by
any of them except pursuant to an effective registration statement under the
Securities Act or any exemption therefrom; provided, however, that, for purposes
of this paragraph, "affiliates" shall not include the Purchasers or any of their
affiliates
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other than Dominion Resources and its subsidiaries, officers, managers and
directors.
4. REGISTRATION EXPENSES. If Dominion Resources and, if applicable, the
---------------------
Trust file a registration statement pursuant to Section 2(a) or Section 2(b),
the following provisions shall apply: Dominion Resources agrees to bear and to
pay or cause to be paid promptly upon request being made therefor all expenses
incident to the performance by Dominion Resources and, if applicable, the Trust
for compliance with this Debenture Exchange and Registration Rights Agreement,
including, without limitation, (a) all Commission and any NASD registration and
filing fees and expenses, (b) all fees and expenses in connection with the
qualification of the Securities and, if applicable, the Guarantee for offering
and sale under the state securities and blue sky laws referred to in Section
3(d)(x) hereof, including reasonable fees and disbursements of counsel in
connection with such qualifications, (c) all expenses relating to the
preparation, printing, distribution and reproduction of each registration
statement required to be filed hereunder, each prospectus included therein or
prepared for distribution pursuant hereto, each amendment or supplement to the
foregoing, and the certificates representing the Securities and all documents
relating hereto, (d) messenger and delivery expenses, (e) fees and expenses of
the Debenture Trustee under the Indenture, the Issuer Trustees under the Trust
Agreement and, if applicable, the Guarantee Trustee under the Guarantee
Agreement, if applicable, and of any escrow agent or custodian, (f) internal
expenses (including, without limitation, all salaries and expenses of Dominion
Resources' officers and employees performing legal or accounting duties), (g)
fees, disbursements and expenses of counsel and independent certified public
accountants of Dominion Resources and, if applicable, the Trust (including the
expenses of any opinions or "cold comfort" letters required by or incident to
such performance and compliance), (h) reasonable fees, disbursements and
reasonable expenses of any "qualified independent underwriter" engaged pursuant
to Section 3(d)(xvii) hereof, (i) reasonable fees, disbursements and reasonable
expenses of one counsel for the holders of Registrable Securities retained in
connection with a Shelf Registration, as selected by the holders of at least a
majority in aggregate Liquidation Amount, or the aggregate principal amount, as
the case may be, of the Registrable Securities being registered, and reasonable
fees, reasonable expenses and disbursements of any other persons, including
special experts, retained by Dominion Resources or, if applicable, the Trust in
connection with such registration (collectively, the "Registration Expenses").
To the extent that any Registration Expenses are incurred, assumed or paid by
any holder of Registrable Securities or any placement or sales agent therefor or
underwriter thereof, Dominion Resources shall reimburse such person for the full
amount of the Registration Expenses so incurred, assumed or paid promptly after
receipt of a written request therefor.
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Notwithstanding the foregoing, the holders of the Registrable Securities being
registered shall pay all agency or brokerage fees and commissions and
underwriting discounts and commissions attributable to the sale of such
Registrable Securities and the fees and disbursements of any counsel or other
advisors or experts retained by such holders (severally or jointly), other than
the counsel and experts specifically referred to above, transfer taxes on resale
of any of the Securities by such holders and any advertising or solicitation
expenses other than expenses specifically referred to above incurred by or on
behalf of such holders in connection with any offers they may make.
5. INDEMNIFICATION.
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(a) Upon the registration of the Registrable Securities pursuant to
Section 2 hereof, and in consideration of the agreements of the Purchasers
contained herein, and as an inducement to the Purchasers to purchase the
Securities, the Trust and Dominion Resources, jointly and severally, agree to
indemnify and hold harmless each of the holders of Registrable Securities to be
included in such registration, and each person who participates as a placement
or sales agent or as an underwriter in any offering or sale of such Registrable
Securities and each person, if any, who controls such holder, or such placement
or sales agent, if any, or such underwriter, if any, within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act (each an "Indemnified
Person") as follows:
(i) against any and all losses, claims, damages and liabilities
(including, without limitation, any legal or other expenses reasonably
incurred in connection with defending or investigating any such action or
claim) caused by any untrue statement or alleged untrue statement of a
material fact contained in any registration statement under which such
Registrable Securities were registered under the Securities Act, or caused
by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein
not misleading or caused by any untrue statement or alleged untrue
statement of a material fact contained in any preliminary, final or summary
prospectus (or any amendment or supplement thereto) contained in such
registration statement or caused by any omission or alleged omission to
state therein of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, except insofar as such losses, claims, damages or liabilities
are caused by any such untrue statement or omission that was made in
reliance upon and in conformity with written information relating to such
20
<PAGE>
indemnified Person furnished to the Trust and Dominion Resources by, or on
behalf of, such Indemnified Person expressly for use in such registration
statement or such preliminary, final or summary prospectus (or any
amendment or supplement thereto);
(ii) against any and all losses, claims, damages and liabilities
whatsoever to the extent of the aggregate amount paid in settlement of any
litigation, or investigation or proceeding by any governmental agency or
body, commenced or threatened, or of any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement or
omission (except as made in reliance upon and in conformity with
information relating to such Indemnified Person furnished by, or on behalf
of, such Indemnified Person as aforesaid), if such settlement is effected
with the written consent of the Trust and Dominion Resources; and
(iii) against any and all expense whatsoever (including the fees
and disbursements of counsel chosen by such Indemnified Person), reasonably
incurred in investigating, preparing or defending against any litigation,
or investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission
(except as made in reliance upon and in conformity with information
relating to such Indemnified Person furnished by, or on behalf of, such
Indemnified Person as aforesaid) to the extent that any such expense is not
paid under (i) or (ii) above;
provided, however, that indemnification with respect to any prospectus shall not
inure to the benefit of any holder of Registrable Securities or Exchange
Securities from whom the Person asserting any loss, claim, damage, liability or
expense purchased such Securities, if a copy of the prospectus (as then amended
or supplemented and furnished by Dominion Resources to such holder) was not sent
or given by or on behalf of such person or to such person if such is required by
law at or prior to the sale of such Registrable Securities or Exchange
Securities, as the case may be, and if the prospectus (as so amended and
supplemented) would have cured the defect giving rise to such loss, claim,
damage, liability or expense.
(b) Dominion Resources may require, as a condition to including any
Registrable Securities in any registration statement filed pursuant to Section 2
hereof and to entering into any placement or underwriting agreement with respect
thereto, that Dominion Resources
21
<PAGE>
shall have received an undertaking reasonably satisfactory to them from the
holder of such Registrable Securities and from each placement agent or
underwriter named in any such placement agreement or underwriting agreement,
severally and not jointly, to indemnify and hold harmless the Trust and Dominion
Resources and each person, if any, who controls the Trust or Dominion Resources
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act against any and all loss, claim, damage, liability and expense
described in the indemnity contained in subsection (a) of this Section, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in any registration statement under which such Registrable
Securities were registered under the Securities Act, or any preliminary, final
or summary prospectus contained therein as furnished by the Trust or Dominion
Resources to any such holder, agent or underwriter (or any amendment or
supplement thereto), in reliance upon and in conformity with written information
relating to such holder, or such placement or sales agent, if any, or such
underwriter, if any, furnished to the Trust and Dominion Resources by or on
behalf of such holder, or such placement or sales agent, if any, or such
underwriter, if any, expressly for use in such registration statement or such
preliminary, final or summary prospectus (or any amendment or supplement
thereto).
(c) Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder but failure to o notify an indemnifying party
shall not relieve it from any liability which it may have otherwise than on
account of this indemnity agreement. An indemnifying party may participate at
its own expense in the defense of such action. In no event shall the
indemnifying parties be liable for the fees and expenses of more than one
counsel (in addition to any local counsel) for all indemnified parties in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances;
provided, however, that when more than one of such holders, such placement or
sales agents, if any, or such underwriters, if any, is an indemnified party each
such holder, placement or sales agent or such underwriter, as the case may be,
shall be entitled to separate counsel (in addition to any local counsel) in each
such jurisdiction to the extent such holder, placement or sales agent or such
underwriter, as the case may be, may have interests conflicting with those of
the other holder, placement or sales agent or such underwriter, as the case may
be. No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened proceeding
in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party
22
<PAGE>
from all liability on claims that are the subject matter of such proceeding.
(d) In order to provide for just and equitable contribution in
circumstances under which any of the indemnity provisions set forth in this
Section 5 is for any reason held to be unavailable to the indemnified parties
although applicable in accordance with its terms, Dominion Resources, the Trust,
and such holders, such placement or sales agents, if any, or such underwriters,
if any, shall contribute to the aggregate losses, liabilities, claims, damages
and expenses of the nature contemplated by such indemnity agreement incurred by
Dominion Resources, the Trust, and such holders, such placement or sales agents,
if any, or such underwriters, if any, as incurred; provided that no person
--------
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person that was
not guilty of such fraudulent misrepresentation. As between Dominion Resources,
the Trust, and such holders, such placement or sales agents, if any, or such
underwriters, if any, such parties shall contribute to such aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by such
indemnity agreement in such proportion as shall be appropriate to reflect the
relative fault of Dominion Resources and the Trust, on the one hand, and such
holders, such placement or sales agents, if any, or such underwriters, if any,
on the other hand, with respect to the statements or omissions which resulted in
such loss, liability, claim, damage or expense, or action in respect thereof, as
well as any other relevant equitable considerations. The relative fault of
Dominion Resources and the Trust, on the one hand, and of such holders, such
placement or sales agents, if any, or such underwriters, if any, on the other
hand, shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by Dominion
Resources or the Trust, on the one hand, or by or on behalf of such holders,
such placement or sales agents, if any, or such underwriters, if any, on the
other hand, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. Dominion
Resources, the Trust and such holders, such placement or sales agents, if any,
or such underwriters, if any, agree that it would not be just and equitable if
contribution pursuant to this Section 5 were to be determined by pro rata
allocation or by any other method of allocation that does not take into account
the relevant equitable considerations. For purposes of this Section 5, each
person, if any, who controls any such holders, such placement or sales agents,
if any, and such underwriters, if any, within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act shall have the same rights to
contribution as such holders, such placement or sales agents, if any, and such
underwriters, if any, and each person, if any, who
23
<PAGE>
controls the Trust or Dominion Resources within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act shall have the same rights to
contribution as the Trust or Dominion Resources. For purposes of this Section 5,
each person, if any, who controls any such holders, such placement or sales
agents, if any, and such underwriters, if any, within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act shall have the same
rights to contribution as such holders, such placement or sales agents, if any,
and such underwriters, if any, and each person, if any, who controls the Trust
or Dominion Resources within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act shall have the same rights to contribution as the
Trust or Dominion Resources.
6. UNDERWRITTEN OFFERINGS.
----------------------
(a) Selection of Underwriters. If any of the Registrable Securities
-------------------------
covered by the Shelf Registration are to be sold pursuant to an underwritten
offering, the managing underwriter or underwriters thereof shall be designated
by the holders of at least a majority in aggregate Liquidation Amount, or
aggregate principal amount, as the case may be, of the Registrable Securities to
be included in such offering, provided that such designated managing underwriter
or underwriters is or are reasonably acceptable to the Trust, if applicable, and
Dominion Resources.
(b) Participation by Holders. Each holder of Registrable Securities
------------------------
hereby agrees with each other such holder that no such holder may participate in
any underwritten offering hereunder unless such holder (i) agrees to sell such
holder's Registrable Securities on the basis provided in any underwriting
arrangements approved by the persons entitled hereunder to approve such
arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
7. RULE 144 AND RULE 144A. For so long as Dominion Resources or the
----------------------
Trust is subject to the reporting requirements of Section 13 or 15 of the
Exchange Act and any Registrable Securities remain outstanding, Dominion
Resources and the Trust, as the case may be, will use their reasonable best
efforts to file the reports required to be filed by it under the Securities Act
and Section 13(a) or 15(d) of the Exchange Act and the rules and regulations
adopted by the Commission thereunder, that if it ceases to be so required to
file such reports, it will, upon the request of any Holder of Registrable
Securities (a) make publicly available such information as is necessary to
permit sales of their securities pursuant to Rule 144 under the Securities Act,
(b) deliver such information to a prospective purchaser as is necessary to
permit
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<PAGE>
sales of their securities pursuant to Rule 144A under the Securities Act and it
will take such further action as any Holder of Registrable Securities may
reasonably request, and (c) take such further action that is reasonable in the
circumstances, in each case, to the extent required from time to time to enable
such Holder to sell its Registrable Securities without registration under the
Securities Act within the limitation of the exemptions provided by (i) Rule 144
under the Securities Act, as such rule may be amended from time to time, (ii)
Rule 144A under the Securities Act, as such rule may be amended from time to
time, or (iii) any similar rules or regulations hereafter adopted by the
Commission. Upon the request of any Holder of Registrable Securities, Dominion
Resources and the Trust will deliver to such Holder a written statement as to
whether it has complied with such requirements.
8. MISCELLANEOUS
-------------
(a) No Inconsistent Agreements. Each of the Trust and Dominion
--------------------------
Resources represents, warrants, covenants and agrees that it has not granted,
and shall not grant, registration rights with respect to Registrable Securities
which would be inconsistent with the terms contained in this Debenture Exchange
and Registration Rights Agreement and that the Capital Securities Exchange and
Registration Rights Agreement and the Guarantee Exchange and Registration Rights
Agreement should be construed to be consistent with the terms hereof.
(b) Notices. All notices, requests, claims, demands, waivers and other
-------
communications hereunder shall be in writing and shall be deemed to have been
duly given when delivered by hand, if delivered personally or by courier, or
three days after being deposited in the mail (registered or certified mail,
postage prepaid, return receipt requested) as follows: if to the Trust or to
Dominion Resources, then to Dominion Resources, Inc., 901 E. Byrd Street,
Richmond, Virginia 23219, Attention: Treasurer, and if to a holder, to the
address of such holder set forth in the security register or other records of
the Trust or of the Debenture Trustee under the Indenture, as the case may be,
or to such other address as any party may have furnished to the others in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
(c) Parties in Interest. All the terms and provisions of this
-------------------
Debenture Exchange and Registration Rights Agreement shall be binding upon,
shall inure to the benefit of and shall be enforceable by the respective
successors and assigns of the parties hereto. In the event that any transferee
of any holder of Registrable Securities shall become a holder of Registrable
Securities, in any manner, whether by gift, bequest, purchase, operation of law
or otherwise, such transferee shall, without any further writing or action of
any kind, be deemed a party
25
<PAGE>
hereto for all purposes and such Registrable Securities shall be held subject to
all of the terms of this Debenture Exchange and Registration Rights Agreement,
and by taking and holding such Registrable Securities such transferee shall be
entitled to receive the benefits of and be conclusively deemed to have agreed to
be bound by and to perform all of the terms and provisions of this Debenture
Exchange and Registration Rights Agreement. If Dominion Resources shall so
request, any such successor, assign or transferee shall agree in writing to
acquire and hold the Registrable Securities subject to all of the terms hereof.
(d) Survival. The respective indemnities, agreements, representations,
--------
warranties and each other provision set forth in this Debenture Exchange and
Registration Rights Agreement or made pursuant hereto shall remain in full force
and effect regardless of any investigation (or statement as to the results
thereof) made by or on behalf of any holder of Registrable Securities, any
director, officer or partner of such holder, any agent or underwriter or any
director, officer or partner thereof, or any controlling person of any of the
foregoing, and shall survive delivery of and payment for the Registrable
Securities and the transfer and registration of Registrable Securities by such
holder and/or the consummation of an Exchange Offer. In addition, the
respective indemnities, representations and warranties set forth herein shall
survive the termination hereof.
(e) LAW GOVERNING. THIS DEBENTURE EXCHANGE AND REGISTRATION RIGHTS
-------------
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.
(f) Headings. The descriptive headings of the several Sections and
--------
paragraphs of this Debenture Exchange and Registration Rights Agreement are
inserted for convenience only, do not constitute a part of this Debenture
Exchange and Registration Rights Agreement and shall not affect in any way the
meaning or interpretation of this Debenture Exchange and Registration Rights
Agreement.
(g) Entire Agreement; Amendments. This Debenture Exchange and
----------------------------
Registration Rights Agreement and the other agreements referred to herein or
delivered pursuant hereto which form a part hereof contain the entire
understanding of the parties with respect to its subject matter. This Debenture
Exchange and Registration Rights Agreement and such other agreements referred to
herein supersede all prior agreements and understandings between the parties
with respect to its subject matter. This Debenture Exchange and Registration
Rights Agreement may be amended and the observance of any term of this Debenture
Exchange and Registration Rights Agreement may be waived (either generally or in
a particular instance and either retroactively or prospectively) only by a
written instrument duly executed by Dominion Resources, the Trust and
26
<PAGE>
the holders of at least a majority in aggregate Liquidation Amount or principal
amount, as the case may be, of the Registrable Securities at the time
outstanding. Each holder of any Registrable Securities at the time or thereafter
outstanding shall be bound by any amendment or waiver effected pursuant to this
Section 8(g), whether or not any notice, writing or marking indicating such
amendment or waiver appears on such Registrable Securities or is delivered to
such holder.
(h) Inspection. For so long as this Debenture Exchange and
----------
Registration Rights Agreement shall be in effect, this Debenture Exchange and
Registration Rights Agreement and a complete list of the names and addresses of
all the registered holders of Registrable Securities shall be made available for
inspection and copying on any business day, during normal business hours, by any
holder of Registrable Securities at the offices of Dominion Resources at the
address thereof set forth in Section 8(b) above.
(i) Counterparts. This agreement may be executed by the parties in
------------
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same instrument.
(j) Termination. Except for the respective indemnities,
-----------
representations and warranties set forth herein, this Debenture Exchange and
Registration Rights Agreement shall terminate when all Securities, Exchange
Securities and Registrable Securities cease to be outstanding.
This Debenture Exchange and Registration Rights Agreement is executed as of
the day and year first above written.
DOMINION RESOURCES, INC.
By: /s/ Edgar M. Roach, Jr.
-----------------------------
Name: Edgar M. Roach, Jr.
Title: Executive Vice President
DOMINION RESOURCES CAPITAL TRUST I
/s/ G. Scott Hetzer
-----------------------------------
As Administrative Trustee
MORGAN STANLEY & CO. INCORPORATED
27
<PAGE>
As Representative of the Purchasers
named in Schedule I to the Purchase
Agreement
By: /s/ Harold J. Hendershot III
------------------------------
(Morgan Stanley & Co. Incorporated)
Acting severally, and not jointly and
severally, on behalf of themselves
and each of the Purchasers named in
Schedule I to the Purchase Agreement
28
<PAGE>
EXHIBIT 4.12
GUARANTEE EXCHANGE AND
REGISTRATION RIGHTS AGREEMENT
GUARANTEE EXCHANGE AND REGISTRATION RIGHTS AGREEMENT, dated as of December
8, 1997, by and among Dominion Resources Capital Trust I, a Delaware business
trust (the "Trust"), Dominion Resources, Inc., a Virginia corporation ("Dominion
Resources"), and Morgan Stanley & Co. Incorporated, J.P. Morgan Securities Inc.,
Lehman Brothers Inc. and Merrill Lynch, Pierce, Fenner & Smith Incorporated
(collectively, the "Purchasers") relating to the Securities of the Trust.
1. CERTAIN DEFINITIONS. For purposes of this Guarantee Exchange and
-------------------
Registration Rights Agreement, the following terms shall have the following
respective meanings:
(a) "Capital Securities Exchange and Registration Rights Agreement"
means the Exchange and Registration Rights Agreement in respect of the
Securities dated as of December 8, 1997 among Dominion Resources, the Trust and
the Purchasers.
(b) "Commission" means the Securities and Exchange Commission, or any
other federal agency at the time administering the Exchange Act or the
Securities Act, whichever is the relevant statute for the particular purpose.
(c) "Debenture Exchange and Registration Rights Agreement" means the
Debenture Exchange and Registration Rights Agreement in respect of the
Debentures dated as of December 8, 1997 among Dominion Resources, the Trust and
the Purchasers.
(d) "Debentures" means the 7.83% Junior Subordinated Deferrable
Interest Debentures due, December 1, 2027 of Dominion Resources, to be issued
pursuant to the Indenture.
(e) "Effective Time", in the case of (i) an Exchange Offer, means the
date on which the Commission declares the Exchange Offer registration statement
effective or on which such registration statement otherwise becomes effective
and (ii) a Shelf Registration, means the date on which the Commission declares
the Shelf Registration effective or on which the Shelf Registration otherwise
becomes effective.
(f) "Exchange Act" means the Securities Exchange Act of 1934, or any
successor thereto, as amended from time to time.
(g) "Exchange Debentures" has the meaning set forth in Section 2(a)
hereof.
<PAGE>
(h) "Exchange Guarantee" has the meaning set forth in Section 2(a)
hereof.
(i) "Exchange Offer" has the meaning set forth in Section 2(a)
hereof.
(j) "Exchange Securities" has the meaning set forth in Section 2(a)
hereof.
(k) "Guarantee" means the Guarantee of Dominion Resources with
respect to the Securities, to the extent set forth in the Guarantee Agreement.
(l) "Guarantee Agreement" means the Capital Securities Guarantee
Agreement dated as of December 8, 1997 between Dominion Resources and The Chase
Manhattan Bank, as Guarantee Trustee (together with its successors and assigns,
the "Guarantee Trustee"), for the benefit of the holders of the Securities.
(m) The term "holder" has the meaning set forth in the Capital
Securities Exchange and Registration Rights Agreement.
(n) "Indemnified Person" has the meaning set forth in Section 5(a)
hereof.
(o) "Indenture" means the Indenture dated as of December 1, 1997,
between Dominion Resources and The Chase Manhattan Bank, as Debenture Trustee,
as supplemented by the First Supplemental Indenture dated as of December 1,
1997, and as further amended or supplemented from time to time.
(p) "Issue Date" means December 8, 1997.
(q) "Liquidation Amount" means the stated liquidation preference of
the Securities.
(r) "New Guarantee Agreement" has the meaning set forth in Section
2(a) hereof.
(s) The term "person" means any individual, corporation, estate,
partnership, joint venture, association, joint stock company, limited liability
company, trust, unincorporated association or government or any agency or
political subdivision thereof, or any other entity of whatever nature.
(t) "Purchase Agreement" means the Purchase Agreement dated December
3, 1997, among Dominion Resources, the Trust and the Purchasers.
2
<PAGE>
(u) "Registrable Securities" has the meaning set forth in the Capital
Securities Exchange and Registration Rights Agreement.
(v) "Registration Expenses" has the meaning set forth in Section 4
hereof.
(w) "Resale Period" has the meaning set forth in the Capital
Securities Exchange and Registration Rights Agreement.
(x) "Rule 144" has the meaning set forth in the Trust Agreement.
(y) "Securities" means, collectively, the $250,000,000 aggregate
Liquidation Amount of the 7.83% Capital Securities, Liquidation Amount $1,000
per Capital Security, of the Trust to be issued and sold to the Purchasers, and
any securities issued in exchange therefor or in lieu thereof pursuant to the
Trust Agreement or the Exchange Offer.
(z) "Securities Act" means the Securities Act of 1933, or any
successor thereto, as amended from time to time.
(aa) "Shelf Registration" has the meaning set forth in Section 2(b)
hereof.
(bb) "Trust Agreement" means the Amended and Restated Trust Agreement
dated as of December 8, 1997 among Dominion Resources, as Depositor, The Chase
Manhattan Bank, as Property Trustee, Chase Manhattan Bank Delaware, as Delaware
Trustee, the Administrative Trustees named therein and the holders, from time to
time, of undivided beneficial interests in the assets of the Trust.
(cc) "Trust Indenture Act" means the Trust Indenture Act of 1939, or
any successor thereto, and the rules, regulations and forms promulgated
thereunder, as amended from time to time.
Unless the context otherwise requires, any reference herein to a "Section"
or "clause" refers to a Section or clause, as the case may be, of this Guarantee
Exchange and Registration Rights Agreement, and the words "herein," "hereof" and
"hereunder" and other words of similar import refer to this Guarantee Exchange
and Registration Rights Agreement as a whole and not to any particular Section
or other subdivision.
2. REGISTRATION UNDER THE SECURITIES ACT.
-------------------------------------
(a) If Dominion Resources and the Trust file a registration statement
pursuant to Section 2(a) of the Capital Securities Exchange and
3
<PAGE>
Registration Rights Agreement, then Dominion Resources and the Trust agree,
jointly and severally, to include in such registration statement an offer to
exchange (the "Exchange Offer") the Guarantee for a new guarantee of Dominion
Resources to be extended pursuant to a new guarantee agreement to be entered
into by Dominion Resources and the Guarantee Trustee for the benefit of holders
of the Exchange Securities (as defined below), the Registrable Securities, if
any, and the Securities, if any (which shall be substantially in the form as
attached hereto as Exhibit A, the "New Guarantee Agreement"), which will be
qualified under the Trust Indenture Act, such new guarantee to be substantially
identical to the Guarantee except that it will relate to the Exchange
Securities, the Registrable Securities, if any, and the Securities, if any, and
it will be registered pursuant to an effective registration statement under the
Securities Act and such new guarantee will not contain provisions restricting
transfer in the absence of registration under the Securities Act (such new
guarantee hereinafter called "Exchange Guarantee"). Such registration statement
shall also relate to, and the consummation of the Exchange Offer shall be
conditioned upon the consummation of, an offer to exchange the Debentures for
substantially identical debentures of Dominion Resources pursuant to the
Debenture Exchange and Registration Rights Agreement (the "Exchange Debentures")
and to an offer to exchange the Securities for substantially identical capital
securities of the Trust pursuant to the Capital Securities Exchange and
Registration Rights Agreement (the "Exchange Securities"). Dominion Resources
and the Trust agree, jointly and severally, to use their reasonable best efforts
to cause such registration statement to become effective under the Securities
Act within 180 days of the Issue Date. The Exchange Offer will be registered
under the Securities Act on the appropriate form. The Exchange Offer shall be
deemed to have been completed upon the completion of the exchange of the
Exchange Guarantee for the Guarantee pursuant to the Exchange Offer.
(b) If Dominion Resources and the Trust file a "shelf" registration
statement pursuant to Section 2(b) of the Capital Securities Exchange and
Registration Rights Agreement without also filing a registration statement
pursuant to Section 2(a) thereof, then such "shelf" registration statement shall
provide for the registration of the Guarantee (the "Shelf Registration"). The
Shelf Registration shall also provide for the registration of the Debentures
pursuant to the Debenture Exchange and Registration Rights Agreement and for the
registration of and the sale on a continuous or delayed basis by the holders of,
all of the Securities pursuant to the Capital Securities Exchange and
Registration Rights Agreement, in each case, pursuant to Rule 415 under the
Securities Act and/or any similar rule that may be adopted by the Commission.
Dominion Resources and the Trust agree, jointly and severally, to use their
reasonable best efforts to cause the Shelf
4
<PAGE>
Registration to become or be declared effective and to keep such Shelf
Registration continuously effective for a period ending on the earlier of (A)
the second anniversary of the Issue Date or (B) such time as there are no longer
any Securities outstanding. Dominion Resources and the Trust further agree,
jointly and severally, to supplement or make amendments to the Shelf
Registration, as and when required by the rules, regulations or instructions
applicable to the registration form used by Dominion Resources and the Trust for
such Shelf Registration or by the Securities Act or rules and regulations
thereunder for shelf registration.
(c) Any reference herein to a registration statement shall be deemed
to include any document incorporated therein by reference as of the applicable
Effective Time and any reference herein to any post-effective amendment to a
registration statement shall be deemed to include any document incorporated
therein by reference as of a time after such Effective Time.
3. REGISTRATION PROCEDURES.
------------------------
If Dominion Resources and the Trust file a registration statement
pursuant to Section 2(a) or Section 2(b), the following provisions shall apply:
(a) At or before the Effective Time of the Exchange Offer or the
Shelf Registration, as the case may be, Dominion Resources shall qualify the
Indenture, the New Guarantee Agreement or Guarantee Agreement (as applicable)
and the Trust Agreement under the Trust Indenture Act.
(b) In the event that such qualification would require the
appointment of a new trustee under any of the Indenture, the New Guarantee
Agreement, the Guarantee Agreement or the Trust Agreement, such new trustee
shall be appointed thereunder pursuant to the applicable provisions thereof.
(c) In connection with the joint and several obligations of Dominion
Resources and the Trust with respect to the registration of the Exchange
Securities, the Exchange Guarantee and the Exchange Debentures, as contemplated
by Section 2(a) (the "Exchange Registration"), if applicable, Dominion Resources
and the Trust shall, as soon as reasonably possible (or as otherwise specified):
(i) prepare and file with the Commission, as soon as
practicable but no later than 150 days after the Issue Date, a registration
statement with respect to the Exchange Registration on any form which may
be utilized by Dominion Resources and the Trust and which shall permit the
Exchange
5
<PAGE>
Offer and resales of Exchange Securities by broker-dealers during the
Resale Period to be effected as contemplated by Section 2(a) hereof, and
use its reasonable best efforts to cause such registration statement to
become effective as soon as practicable thereafter;
(ii) as soon as practicable prepare and file with the
Commission such amendments and supplements to such registration statement
and the prospectus included therein as may be necessary to effect and
maintain the effectiveness of such registration statement for the periods
and purposes contemplated in Section 2(a) hereof and as may be required by
the applicable rules and regulations of the Commission and the instructions
applicable to the form of such registration statement, and promptly provide
each broker-dealer holding Exchange Securities with such number of copies
of the prospectus included therein (as then amended or supplemented), in
conformity in all material respects with the requirements of the Securities
Act and the Trust Indenture Act and the rules and regulations of the
Commission promulgated thereunder, as such broker- dealer reasonably may
request prior to the expiration of the Resale Period, for use in connection
with resales of Exchange Securities;
(iii) promptly notify each broker-dealer that has requested or
received copies of the prospectus included in such registration statement,
and confirm such advice in writing, (A) when such registration statement or
the prospectus included therein or any prospectus amendment or supplement
or post-effective amendment has become effective, (B) of the receipt of any
comments by the Commission and by the Blue Sky or securities commissioner
or regulator of any state with respect thereto or any request by the
Commission for amendments or supplements to such registration statement or
prospectus or for additional information, (C) of the issuance by the
Commission of any stop order suspending the effectiveness of such
registration statement or the initiation or threatening by the Commission
of any proceedings for that purpose, (D) of the receipt by either Dominion
Resources or the Trust of any notification with respect to the suspension
of the qualification of the Exchange Securities and the Exchange Guarantee
for sale in any United States jurisdiction or the initiation or, to
Dominion Resources' or the Trust's knowledge, threatening of any proceeding
for such purpose, or (E) at any time during the Resale Period when a
prospectus is required to be delivered under the Securities Act, that such
registration statement, prospectus, prospectus amendment or
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supplement or post-effective amendment does not conform in all material
respects to the applicable requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission promulgated
thereunder or contains an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading in light of the circumstances then
existing;
(iv) in the event that Dominion Resources and the Trust would
be required, pursuant to Section 3(c)(iii)(E) above, to notify any broker-
dealers holding Exchange Securities, without delay prepare and furnish to
each such holder a reasonable number of copies of a prospectus supplemented
or amended so that, as thereafter delivered to purchasers of such Exchange
Securities during the Resale Period, such prospectus shall conform in all
material respects to the applicable requirements of the Securities Act and
the Trust Indenture Act and the rules and regulations of the Commission
promulgated thereunder and shall not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in light
of the circumstances then existing;
(v) use their reasonable best efforts to obtain the withdrawal
of any order suspending the effectiveness of such registration statement or
any post-effective amendment thereto at the earliest practicable date;
(vi) use their reasonable best efforts to (A) register or
qualify the Exchange Securities and the Exchange Guarantee under the
securities laws or blue sky laws of such jurisdictions as are contemplated
by Section 2(a) no later than the commencement of the Exchange Offer, (B)
keep such registrations or qualifications in effect and comply with such
laws so as to permit the continuance of offers, sales and dealings therein
in such jurisdictions until the expiration of the Resale Period and (C)
take any and all other actions as may be reasonably necessary or advisable
to enable each broker-dealer holding Exchange Securities to consummate the
disposition thereof in such jurisdictions; provided, however, that neither
Dominion Resources nor the Trust shall be required for any such purpose to
(1) qualify to do business in any jurisdiction wherein it would not
otherwise be required to qualify but for the requirements of this Section
3(c)(vi), (2) consent to general service of process in any such
jurisdiction
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or (3) in the case of Dominion Resources, make any changes to its Articles
of Incorporation or Bylaws or any agreement between it and its stockholders
or in the case of the Trust, make any changes to the Trust Agreement;
(vii) provide a CUSIP number for all Exchange Securities, not
later than the applicable Effective Time; and
(viii) comply with all applicable rules and regulations of the
Commission, and make generally available to all holders of Securities as
soon as practicable but no later than eighteen months after the Effective
Time, an earnings statement of Dominion Resources and its subsidiaries
complying with Section 11 (a) of the Securities Act (including, at the
option of Dominion Resources, Rule 158 thereunder).
(d) In connection with the joint and several obligations of Dominion
Resources and the Trust with respect to the Shelf Registration, if applicable,
Dominion Resources and the Trust shall use their reasonable best efforts to
cause the Shelf Registration to become effective to permit the sale of the
Registrable Securities by the holders thereof in accordance with the intended
method or methods of distribution thereof described in the Shelf Registration.
In connection therewith, Dominion Resources and the Trust shall as soon as
reasonably possible (or as otherwise specified):
(i) prepare and file with the Commission, as soon as
practicable, a registration statement with respect to the Shelf
Registration on any form which may be utilized by Dominion Resources and
the Trust and which shall permit the disposition of the Registrable
Securities in accordance with the intended method or methods thereof, as
specified in writing to Dominion Resources and the Trust by the holders of
the Registrable Securities and use their reasonable best efforts to cause
such registration statement to become effective as soon as practicable
thereafter;
(ii) as soon as practicable, prepare and file with the
Commission such amendments and supplements to such registration statement
and the prospectus included therein as may be necessary to effect and
maintain the effectiveness of such registration statement for the period
specified in Section 2(b) hereof and as may be required by the applicable
rules and regulations of the Commission and the instructions applicable to
the form of such registration statement and furnish to the holders of the
Registrable Securities copies of
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<PAGE>
any such supplement or amendment simultaneously with or prior to its being
used or filed with the Commission;
(iii) comply with the provisions of the Securities Act
applicable to Dominion Resources or the Trust in connection with the
disposition of all of the registrable Securities covered by such
registration statement in accordance with the intended methods of
disposition by the holders thereof, set forth in such registration
statement;
(iv) provide (A) the holders of the Registrable Securities to
be included in such registratiion statement and not more than one counsel
for all the holders of such Registrable Securities, (B) the underwriters
(which term, for purposes of this Guarantee Exchange and Registration
Rights Agreement, shall inlcude a person deemed to be an underwriter within
the meaning of Section 2(11) of the Securities Act), if any, thereof, (C)
the sales or placement agent, if any, therefor and (D) one counsel for such
underwriters or agents, if any, reasonable opportunity to participate in
the preparation of such registration statement, each prospectus included
therein or filed with the Commission, and each amendment or supplement
thereto;
(v) for a reasonable period prior to the filing of such
registration statement, and throughout the period specified in Section
2(b), make available at reasonable times at Dominion Resources' principal
place of business or such other reasonable place for inspection by the
persons referred to in Section 3(d)(iv) who shall certify to Dominion
Resources and the Trust that they have a current intention to sell the
Registrable Securities pursuant to the Shelf Registration such financial
and other information and books and records of Dominion Resources and the
Trust, and cause the officers, employees, counsel and independent certified
public accountants of Dominion Resources and the Trust to respond to such
inquiries, as shall be reasonably necessary, in the judgment of the
respective counsel referred to in such Section, to conduct a reasonable
investigation within the meaning of Section 11 of the Securities Act;
provided, however, that each such party shall be required to maintain in
confidence and not to disclose to any other person any information or
records reasonably designated by Dominion Resources as being confidential,
until such time as (A) such information becomes a matter of public record
(whether by virtue of its inclusion in such registration statement or
otherwise, except by disclosure by such party in breach of
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<PAGE>
this Agreement), or (B) such person shall be required so to disclose such
information pursuant to the subpoena or order of any court or other
governmental agency or body having jurisdiction over the matter (subject
to, and only to the extent required by, the requirements of such order, and
only after such person shall have given Dominion Resources prompt prior
written notice of such requirement);
(vi) promptly notify the selling holders of Registrable
Securities, the sales or placement agent, if any, therefor and the managing
underwriter or underwriters, if any, thereof and confirm such advice in
writing, (A) when such registration statement or the prospectus included
therein or any prospectus amendment or supplement or post-effective
amendment has become effective, (B) of any comments by the Commission and
by the Blue Sky or securities commissioner or regulator of any state with
respect thereto or any request by the Commission for amendments or
supplements to such registration statement or prospectus or for additional
information, (C) of the issuance by the Commission of any stop order
suspending the effectiveness of such registration statement or the
initiation or threatening by the Commission of any proceedings for that
purpose, (D) if at any time the joint and several representations and
warranties of Dominion Resources and the Trust contemplated by Section
3(d)(xv)(A) cease to be true and correct in all material respects, (E) of
the receipt by either Dominion Resources or the Trust of any notification
with respect to the suspension of the qualification of the Registrable
Securities and the Guarantee for sale in any jurisdiction or the initiation
or, to Dominion Resources' or the Trust's knowledge, threatening of any
proceeding for such purpose, or (F) at any time when a prospectus is
required to be delivered under the Securities Act, that such registration
statement, prospectus, prospectus amendment or supplement or post-effective
amendment, or any document incorporated by reference in any of the
foregoing, does not conform in all material respects to the applicable
requirements of the Securities Act and the Trust Indenture Act and the
rules and regulations of the Commission promulgated thereunder or contains
an untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances then existing;
(vii) use their best efforts to obtain the withdrawal of any
order suspending the effectiveness of such
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<PAGE>
registration statement or any post-effective amendment thereto at the
earliest practicable date;
(viii) if requested by any managing underwriter or underwriters,
any placement or sales agent or any holder or counsel for the holders of
Registrable Securities, promptly incorporate in a prospectus supplement or
post-effective amendment such information as is required by the applicable
rules and regulations of the Commission and as such managing underwriter or
underwriters, such agent or such holder specifies should be included
therein relating to the terms of the sale of such Registrable Securities,
including, without limitation, information with respect to the Liquidation
Amount or the principal amount, as the case may be, of Registrable
Securities being sold by any holder or agent or to any underwriters, the
name and description of such holder, agent or underwriter, the offering
price of such Registrable Securities and any discount, commission or other
compensation payable in respect thereof, the purchase price being paid
therefor by such underwriters and with respect to any other terms of the
offering of the Registrable Securities, to be sold by such holder or agent
or to such underwriters; and make all required filings of such prospectus
supplement or post-effective amendment promptly after notification of the
matters to be incorporated in such prospectus supplement or post-effective
amendment;
(ix) furnish to each holder of Registrable Securities, each
placement or sales agent, if any, therefor, each underwriter, if any,
thereof and the respective counsel referred to in Section 3(d)(iv) a
conformed copy of such registration statement, each such amendment and
supplement thereto and such number of copies of such registration statement
and of the prospectus included in such registration statement, in
conformity with the requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission promulgated
thereunder, and such other documents, as such holder, agent, if any, and
underwriter, if any, may reasonably request in order to facilitate the
offering and disposition of the Registrable Securities owned by such
holder, offered or sold by such agent or underwritten by such underwriter
and to permit such holder, agent and underwriter to satisfy the prospectus
delivery requirements of the Securities Act; and each of Dominion Resources
and the Trust hereby consents to the use of such prospectus and any
amendment or supplement thereto by each such holder and by any such agent
and underwriter, in each
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case in the form most recently provided to such party by Dominion Resources
and the Trust, in connection with the offering and sale of the Registrable
Securities covered by the prospectus or any supplement or amendment
thereto;
(x) use their reasonable best efforts to (A) register or
qualify the Registrable Securities to be included in such registration
statement and the Guarantee under such securities laws or blue sky laws of
such jurisdictions as any holder of such Registrable Securities and each
placement or sales agent, if any, therefor and underwriter, if any, thereof
shall reasonably request, (B) keep such registrations or qualifications in
effect and comply with such laws so as to permit the continuance of offers,
sales and dealings therein in such jurisdictions during the period the
Shelf Registration is required to remain effective under Section 2(b) above
and (C) take any and all other actions as may be reasonably necessary or
advisable to enable each such holder, agent, if any, and underwriter, if
any, to consummate the disposition in such jurisdictions of Registrable
Securities; provided, however, that neither Dominion Resources nor the
Trust shall be required for any such purpose to (1) qualify to do business
in any jurisdiction wherein it would not otherwise be required to qualify
but for the requirements of this Section 3(d)(x), (2) consent to general
service of process in any such jurisdiction, (3) in the case of Dominion
Resources, make any changes to its Articles of Incorporation or Bylaws or
any agreement between it and its shareholders or, in the case of the Trust,
make any changes to the Trust Agreement;
(xi) use their reasonable best efforts to obtain the consent or
approval of each governmental agency or authority, whether federal, state
or local, which may be required to effect the Shelf Registration or the
offering or sale in connection therewith or to enable the selling holder or
holders to offer, or to consummate the disposition of, their Registrable
Securities;
(xii) cooperate with the holders of the Registrable Securities
and the managing underwriters, if any, to facilitate the timely preparation
and delivery of certificates representing Registrable Securities to be
sold, which certificates shall be printed, lithographed or engraved, or
produced by any combination of such methods, and which shall not bear any
restrictive legends; and, in the case of an underwritten offering, enable
such Registrable Securities to be in such denominations and registered in
such names as the
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<PAGE>
managing underwriters may request at least two business days prior to any
sale of the Registrable Securities;
(xiii) provide a CUSIP number for all Registrable Securities, not
later than the applicable Effective Time;
(xiv) enter into any underwriting agreement, engagement letter,
agency agreement, "best efforts" underwriting agreement or similar
agreement, as appropriate, including (without limitation) provisions
relating to indemnification and contribution substantially the same as
those set forth in Section 5 hereof, and take such other actions in
connection therewith as reasonably requested in order to expedite or
facilitate the disposition of such Registrable Securities; provided, that
Dominion Resources and the Trust shall not be required to (i) enter into
any such agreement more than once with respect to all of the Registrable
Securities and may delay entering into such agreement until the
consummation of any underwritten public offering which Dominion Resources
and the Trust shall have then undertaken or (ii) enter into any engagement
letter, agency agreement, "best effort" underwriting agreement or similar
agreements whatsoever with respect to the Registrable Securities, and
provided further, that Dominion Resources and the Trust shall not be
obligated to enter into any such agreement with a broker-dealer which
results in the need for a "qualified independent underwriter" (within the
meaning of the Rules of Fair Practice and the Bylaws of the National
Association of Securities Dealers, Inc. ("NASD") or any successor thereto,
as amended from time to time (the "Rules and Bylaws of NASD"));
(xv) whether or not an agreement of the type referred to in
Section (3)(d)(xiv) hereof is entered into and whether or not any portion
of the offering contemplated by such registration statement is an
underwritten offering or is made through a placement or sales agent or any
other entity, (A) make such representations and warranties to the holders
of such Registrable Securities and the placement or sales agent, if any,
therefor and the underwriters, if any, thereof as are customarily made with
respect to the offering of debt securities pursuant to any appropriate
agreement or to a registration statement on the applicable form under the
Securities Act; (B) obtain an opinion or opinions of counsel to Dominion
Resources and the Trust (which may be in the form of a reliance letter)
covering matters as are customarily covered in opinions for an underwritten
offering, addressed to
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<PAGE>
such holder or holders and the placement or sales agent, if any, therefor,
and the underwriters, if any, thereof, (it being agreed that the matters to
be covered by such opinions may be subject to customary qualifications and
exceptions) and dated the effective date of such registration statement
(and if such registration statement contemplates an underwritten offering
of a part or all of the Registrable Securities, dated the date of the
closing under the underwriting agreement relating thereto); (C) obtain a
"cold comfort" letter or letters from the independent certified public
accountants of Dominion Resources and the Trust addressed to the selling
holders of Registrable Securities, the placement or sales agent, if any,
therefor and the underwriters, if any, thereof, dated (i) the effective
date of such registration statement and (ii) the effective date of any
prospectus supplement to the prospectus included in such registration
statement or post-effective amendment to such registration statement; and
(D) undertake such obligations relating to expense reimbursement,
indemnification and contribution as are provided in Section 5 hereof;
(xvi) notify in writing each holder of Registrable Securities of
any proposal by Dominion Resources and the Trust to amend or waive any
provision of this Guarantee Exchange and Registration Rights Agreement
pursuant to Section 6(g) hereof and of any amendment or waiver effected
pursuant thereto, each of which notices shall contain the text of the
amendment or waiver proposed or effected, as the case may be;
(xvii) in the event that any broker-dealer registered under the
Exchange Act shall underwrite any Registrable Securities or participate as
a member of an underwriting syndicate or selling group or "assist in the
distribution" (within the meaning of the Rules and Bylaws of NASD) thereof,
whether as a holder of such Registrable securities or as an underwriter, a
placement or sales agent or a broker or dealer in respect thereof, or
otherwise, assist such broker-dealer in complying with the requirements of
such Rules and Bylaws, including, without limitation, by (A) if such Rules
or Bylaws, including Schedule E thereto (or any successor thereto), shall
so require, engaging a "qualified independent underwriter" (as defined in
such Schedule (or any successor thereto)) to participate in the reparation
of the registration statement relating to such Registrable Securities, to
exercise usual standards of due diligence in respect hereto and, if any
portion of the offering contemplated by such registration statement is an
underwritten
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<PAGE>
offering or is made through placement or sales agent, to recommend the
yield of such Registrable Securities, (B) indemnifying any such qualified
independent underwriter to the extent of the indemnification of
underwriters provided in Section 5 hereof (or to such other customary
extent as may be required by such underwriter), and (C) providing such
information of such broker-dealer as may be required in order for such
broker-dealer to comply with the requirements of the Rules and Bylaws of
NASD; and
(xviii) comply with all applicable rules and regulations of the
Commission, and make generally available to its holders of the Securities
as soon as practicable but in any event not later than eighteen months
after the effective date of such registration statement, an earnings
statement of Dominion Resources and its subsidiaries complying with Section
11(a) of the Securities Act (including, at the option of Dominion
Resources, Rule 158 thereunder).
(e) In the event that Dominion Resources and the Trust would be
required, pursuant to Section 3(d)(vi)(F) above, to notify the selling holders
of Registrable Securities, the placement or sales agent, if any, therefor and
the managing underwriters, if any, thereof, Dominion Resources and the Trust
shall without delay prepare and furnish to each such holder, to each placement
or sales agent, if any, and to each underwriter, if any, a reasonable number of
copies of a prospectus supplemented or amended so that, as thereafter delivered
to purchasers of Registrable Securities, such prospectus shall conform in all
material respects to the applicable requirements of the Securities Act and the
Trust Indenture Act and the rules and regulations of the Commission promulgated
thereunder and shall not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then existing.
Each broker-dealer holding Exchange Securities and each holder of Registrable
Securities agrees that upon receipt of any notice from Dominion Resources and
the Trust pursuant to Section 3(c)(iii)(E) or 3(d)(vi)(F) hereof, as the case
may be, such holder shall forthwith discontinue the disposition of Exchange
Securities or Registrable Securities, as the case may be, pursuant to the
registration statement applicable to such Exchange Securities or Registrable
Securities, as the case may be, until such holder shall have received copies of
such amended or supplemented prospectus, and if so directed by Dominion
Resources and the Trust, such holder shall deliver to Dominion Resources (at
Dominion Resources' expense) all copies, other than permanent file copies, then
in such holder's possession of the prospectus covering such Exchange Securities
or Registrable Securities, as the case may be, at the time of receipt of such
notice.
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(f) Dominion Resources and the Trust may require each holder of
Registrable Securities as to which any registration is being effected to furnish
in writing to Dominion Resources and the Trust such information regarding such
holder and such holder's intended method of distribution of such Registrable
Securities as Dominion Resources and the Trust may from time to time reasonably
request in writing. Each such holder agrees to notify Dominion Resources and the
Trust as promptly as practicable of any inaccuracy or change in information
previously furnished by such holder to Dominion Resources and the Trust or of
the occurrence of any event in either case as a result of which any prospectus
relating to such registration contains or would contain an untrue statement of a
material fact regarding such holder or such holder's intended method of
distribution of such Registrable Securities or omits to state any material fact
regarding such holder or such holder's intended method of distribution of such
Registrable Securities required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then existing,
and promptly to furnish to Dominion Resources and the Trust any additional
information required to correct and update any previously furnished information
or required so that such prospectus shall not contain, with respect to such
holder or the distribution of such Registrable Securities, an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in light of
the circumstances then existing. Each such holder shall comply with the
provisions of the Securities Act applicable to such holder with respect to the
disposition by such holder of Registrable Securities covered by such
registration statement in accordance with the intended methods of disposition by
such holder set forth in such registration statement.
(g) Until the expiration two years after the Issue Date, Dominion
Resources will not, and will not permit any of its "affiliates" (as defined in
Rule 144 under the Securities Act) to, resell any of the Securities which
constitute "restricted securities" under Rule 144 that have been reacquired by
any of them except pursuant to an effective registration statement under the
Securities Act or any exemption therefrom; provided, however, that, for purposes
of this paragraph, "affiliates" shall not include the Purchasers or any of their
affiliates other than Dominion Resources and its subsidiaries, officers,
managers and directors.
4. REGISTRATION EXPENSES.
---------------------
If Dominion Resources and the Trust file a registration statement
pursuant to Section 2(a) or Section 2(b), the following provisions shall apply:
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Dominion Resources agrees to bear and to pay or cause to be paid promptly
upon request being made therefor all expenses incident to the performance by
Dominion Resources and the Trust for compliance with this Guarantee Exchange and
Registration Rights Agreement, including, without limitation, (a) all Commission
and any NASD registration and filing fees and expenses, (b) all fees and
expenses in connection with the qualification of the Securities and the
Guarantee for offering and sale under the state securities and blue sky laws
referred to in Section 3(d)(x) hereof, including reasonable fees and
disbursements of counsel in connection with such qualifications, (c) all
expenses relating to the preparation, printing, distribution and reproduction of
each registration statement required to be filed hereunder, each prospectus
included therein or prepared for distribution pursuant hereto, each amendment or
supplement to the foregoing, and the certificates representing the Securities
and all documents relating hereto, (d) messenger and delivery expenses, (e) fees
and expenses of the Debenture Trustee under the Indenture, the Issuer Trustees
under the Trust Agreement and the Guarantee Trustee under the Guarantee
Agreement, and of any escrow agent or custodian, (f) internal expenses
(including, without limitation, all salaries and expenses of Dominion Resources'
officers and employees performing legal or accounting duties), (g) fees,
disbursements and expenses of counsel and independent certified public
accountants of Dominion Resources and the Trust (including the expenses of any
opinions or "cold comfort" letters required by or incident to such performance
and compliance), (h) reasonable fees, disbursements and reasonable expenses of
any "qualified independent underwriter" engaged pursuant to Section 3(d)(xvii)
hereof, (i) reasonable fees, disbursements and reasonable expenses of one
counsel for the holders of Registrable Securities retained in connection with a
Shelf Registration, as selected by the holders of at least a majority in
aggregate Liquidation Amount, or the aggregate principal amount, as the case may
be, of the Registrable Securities being registered, and reasonable fees,
reasonable expenses and disbursements of any other persons, including special
experts, retained by Dominion Resources or the Trust in connection with such
registration (collectively, the "Registration Expenses"). To the extent that any
Registration Expenses are incurred, assumed or paid by any holder of Registrable
Securities or any placement or sales agent therefor or underwriter thereof,
Dominion Resources shall reimburse such person for the full amount of the
Registration Expenses so incurred, assumed or paid promptly after receipt of a
written request therefor. Notwithstanding the foregoing, the holders of the
Registrable Securities being registered shall pay all agency or brokerage fees
and commissions and underwriting discounts and commissions attributable to the
sale of such Registrable Securities and the fees and disbursements of any
counsel or other advisors or experts retained by such holders (severally or
jointly), other than the counsel and experts specifically referred to above,
transfer taxes on resale of any of the Securities by such holders and any
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advertising or solicitation expenses other than expenses specifically referred
to above incurred by or on behalf of such holders in connection with any offers
they may make.
5. INDEMNIFICATION.
---------------
(a) Upon the registration of the Exchange Guarantee or the Guarantee,
as the case may be, pursuant to Section 2 hereof, and in consideration of the
agreements of the Purchasers contained herein, and as an inducement to the
Purchasers to purchase the Securities, the Trust and Dominion Resources, jointly
and severally, agree to indemnify and hold harmless, each of the holders of
Registrable Securities to which the Exchange Guarantee or the Guarantee relates,
and each person who participates as a placement or sales agent or as an
underwriter in any offering or sale of such Registrable Securities and each
person, if any, who controls such holder, or such placement or sales agent, if
any, or such underwriter, if any, within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act (each an "Indemnified Person")
as follows:
(i) against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim) caused by any untrue statement or alleged untrue statement
of a material fact contained in any registration statement under which the
Exchange Guarantee or the Guarantee were registered under the Securities
Act, or caused by 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 or caused by any untrue statement or
alleged untrue statement of a material fact contained in any preliminary,
final or summary prospectus (or any amendment or supplement thereto)
contained in such registration statement or caused by any omission or
alleged omission to state therein a material fact necessary in order to
make the statements therein, in the light of the circumstances under which
they were made, not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission
that was made in reliance upon and in conformity with written information
relating to such Indemnified Person furnished to the Trust and Dominion
Resources by, or on behalf of, such Indemnified Person expressly for use in
such registration statement or such preliminary, final or summary
prospectus (or any amendment or supplement thereto);
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<PAGE>
(ii) against any and all losses, claims, damages and
liabilities whatsoever to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission (except as made in reliance upon and
in conformity with information relating to such Indemnified Person
furnished by, or on behalf of, such Indemnified Person as aforesaid), if
such settlement is effected with the written consent of the Trust and
Dominion Resources; and
(iii) against any and all expense whatsoever (including the fees
and disbursements of counsel chosen by such Indemnified Person), reasonably
incurred in investigating, preparing or defending against any litigation,
or investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission
(except as made in reliance upon and in conformity with information
relating to such Indemnified Person furnished by, or on behalf of, such
Indemnified Person as aforesaid) to the extent that any such expense is not
paid under (i) or (ii) above.
provided, however, that indemnification with respect to any prospectus shall not
inure to the benefit of any holder of Registrable Securities or Exchange
Securities from whom the Person asserting any loss, claim, damage, liability or
expense purchased such Securities, if a copy of the prospectus (as then amended
or supplemented and furnished by Dominion Resources to such holder) was not sent
or given by or on behalf of such holder to such person if such is required by
law at or prior to the sale of such Registrable Securities or Exchange
Securities, as the case may be, and if the prospectus (as so amended and
supplemented) would have cured the defect giving rise to such loss, claim,
damage, liability or expense.
(b) Dominion Resources may require, as a condition to including any
Registrable Securities in any registration statement filed pursuant to Section 2
hereof and to entering into any placement or underwriting agreement with respect
thereto, that Dominion Resources shall have received an undertaking reasonably
satisfactory to them from the holder of such Registrable Securities and from
each placement agent or underwriter named in any such placement agreement or
underwriting agreement, severally and not jointly, to indemnify and hold
harmless the Trust and Dominion Resources and each person, if any, who controls
the Trust or Dominion Resources within the meaning of Section 15 of the
19
<PAGE>
Securities Act or Section 20 of the Exchange Act against any and all loss,
claim, damage, liability and expense described in the indemnity contained in
subsection (a) of this Section, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in any registration
statement under which such Registrable Securities were registered under the
Securities Act, or any preliminary, final or summary prospectus contained
therein as furnished by the Trust or Dominion Resources to any such holder,
agent or underwriter (or any amendment or supplement thereto), in reliance upon
and in conformity with written information relating to such holder, or such
placement or sales agent, if any, or such underwriter, if any, furnished to the
Trust and Dominion Resources by or on behalf of such holder, or such placement
or sales agent, if any, or such underwriter, if any, expressly for use in such
registration statement or such preliminary, final or summary prospectus (or any
amendment or supplement thereto).
(c) Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder but failure to so notify an indemnifying party
shall not relieve it from any liability which it may have otherwise than on
account of this indemnity agreement. An indemnifying party may participate at
its own expense in the defense of such action. In no event shall the
indemnifying parties be liable for the fees and expenses of more than one
counsel (in addition to any local counsel) for all indemnified parties in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances;
provided, however, that when more than one of such holders, such placement or
sales agents, if any, or such underwriters, if any, is an indemnified party each
such holder, placement or sales agent or such underwriter, as the case may be,
shall be entitled to separate counsel (in addition to any local counsel) in each
such jurisdiction to the extent such holder, placement or sales agent or such
underwriter, as the case may be, may have interests conflicting with those of
the other holder, placement or sales agent or such underwriter, as the case may
be. No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened proceeding
in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such proceeding.
(d) In order to provide for just and equitable contribution in
circumstances under which any of the indemnity provisions set forth in this
Section 5 is for any reason held to be unavailable to the
20
<PAGE>
indemnified parties although applicable in accordance with its terms, Dominion
Resources, the Trust, and such holders, such placement or sales agents, if any,
or such underwriters, if any, shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by such
indemnity agreement incurred by Dominion Resources, the Trust, and such holders,
such placement or sales agents, if any, or such underwriters, if any, as
incurred; provided that no person guilty of fraudulent misrepresentation
--------
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person that was not guilty of such fraudulent
misrepresentation. As between Dominion Resources, the Trust, and such holders,
such placement or sales agents, if any, or such underwriters, if any, such
parties shall contribute to such aggregate losses, liabilities, claims, damages
and expenses of the nature contemplated by such indemnity agreement in such
proportion as shall be appropriate to reflect the relative fault of Dominion
Resources and the Trust, on the one hand, and such holders, such placement or
sales agents, if any, or such underwriters, if any, on the other hand, with
respect to the statements or omissions which resulted in such loss, liability,
claim, damage or expense, or action in respect thereof, as well as any other
relevant equitable considerations. The relative fault of Dominion Resources and
the Trust, on the one hand, and of such holders, such placement or sales agents,
if any, or such underwriters, if any, on the other hand, shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by Dominion Resources or the Trust, on the one
hand, or by or on behalf of such holders, such placement or sales agents, if
any, or such underwriters, if any, on the other hand, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. Dominion Resources, the Trust and such holders, such
placement or sales agents, if any, or such underwriters, if any, agree that it
would not be just and equitable if contribution pursuant to this Section 5 were
to be determined by pro rata allocation or by any other method of allocation
that does not take into account the relevant equitable considerations. For
purposes of this Section 5, each person, if any, who controls any such holders,
such placement or sales agents, if any, and such underwriters, if any, within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act shall have the same rights to contribution as such holders, such placement
or sales agents, if any, and such underwriters, if any, and each person, if any,
who controls the Trust or Dominion Resources within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act shall have the same rights
to contribution as the Trust or Dominion Resources. For purposes of this
Section, each person, if any, who controls any such holders, such placement or
sales agents, if any, and such underwriters, if any, within the meaning of
Section 15 of the Securities Act or Section
21
<PAGE>
20 of the Exchange Act shall have the same rights to contribution as such
holders, such placement or sales agents, if any, and such underwriters, if any,
and each person, if any, who controls the Trust or Dominion Resources within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act
shall have the same rights to contribution as the Trust or Dominion Resources.
6. MISCELLANEOUS.
-------------
(a) No Inconsistent Agreements. Each of the Trust and Dominion
--------------------------
Resources represents, warrants, covenants and agrees that it has not granted,
and shall not grant, registration rights with respect to the Guarantee which
would be inconsistent with the terms contained in this Guarantee Exchange and
Registration Rights Agreement and that the Debenture Exchange and Registration
Rights Agreement and the Capital Securities Exchange and Registration Rights
Agreement should be construed to be consistent with the terms hereof.
(b) Notices. All notices, requests, claims, demands, waivers and
-------
other communications hereunder shall be in writing and shall be deemed to have
been duly given when delivered by hand, if delivered personally or by courier,
or three days after being deposited in the mail (registered or certified mail,
postage prepaid, return receipt requested) as follows: if to the Trust or to
Dominion Resources, then to Dominion Resources, Inc., 901 E. Byrd Street,
Richmond, Virginia 23219, Attention: Treasurer, and if to a holder, to the
address of such holder set forth in the security register or other records of
the Trust, or to such other address as any party may have furnished to the
others in writing in accordance herewith, except that notices of change of
address shall be effective only upon receipt.
(c) Parties in Interest. All the terms and provisions of this
-------------------
Guarantee Exchange and Registration Rights Agreement shall be binding upon,
shall inure to the benefit of and shall be enforceable by the respective
successors and assigns of the parties hereto. In the event that any transferee
of any holder of Registrable Securities shall become a holder of Registrable
Securities, in any manner, whether by gift, bequest, purchase, operation of law
or otherwise, such transferee shall, without any further writing or action of
any kind, be deemed a party hereto for all purposes and such Registrable
Securities shall be held subject to all of the terms of this Guarantee Exchange
and Registration Rights Agreement, and by taking and holding such Registrable
Securities such transferee shall be entitled to receive the benefits of and be
conclusively deemed to have agreed to be bound by and to perform all of the
terms and provisions of this Guarantee Exchange and Registration Rights
Agreement. If Dominion Resources shall so request, any such
22
<PAGE>
successor, assign or transferee shall agree in writing to acquire and hold the
Registrable Securities subject to all of the terms hereof.
(d) Survival. The respective indemnities, agreements,
--------
representations, warranties and each other provision set forth in this Guarantee
Exchange and Registration Rights Agreement or made pursuant hereto shall remain
in full force and effect regardless of any investigation (or statement as to the
results thereof) made by or on behalf of any holder of Registrable Securities,
any director, officer or partner of such holder, any agent or underwriter or any
director, officer or partner thereof, or any controlling person of any of the
foregoing, and shall survive delivery of and payment for the Registrable
Securities pursuant to the Purchase Agreement and the transfer and registration
of Registrable Securities by such holder and the consummation of an Exchange
Offer. In addition, the respective indemnities, representations and warranties
set forth herein shall survive the termination hereof.
(e) LAW GOVERNING. THIS GUARANTEE EXCHANGE AND REGISTRATION RIGHTS
-------------
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.
(f) Headings. The descriptive headings of the several Sections and
--------
paragraphs of this Guarantee Exchange and Registration Rights Agreement are
inserted for convenience only, do not constitute a part of this Guarantee
Exchange and Registration Rights Agreement and shall not affect in any way the
meaning or interpretation of this Guarantee Exchange and Registration Rights
Agreement.
(g) Entire Agreement; Amendments. This Guarantee Exchange and
----------------------------
Registration Rights Agreement and the other agreements referred to herein or
delivered pursuant hereto which form a part hereof contain the entire
understanding of the parties with respect to its subject matter. This Guarantee
Exchange and Registration Rights Agreement and such other agreements referred to
herein supersede all prior agreements and understandings between the parties
with respect to its subject matter. This Guarantee Exchange and Registration
Rights Agreement may be amended and the observance of any term of this Guarantee
Exchange and Registration Rights Agreement may be waived (either generally or in
a particular instance and either retroactively or prospectively) only by a
written instrument duly executed by Dominion Resources, the Trust, and the
holders of at least a majority in aggregate principal amount of the Registrable
Securities at the time outstanding. Each holder of any Registrable Securities at
the time or thereafter outstanding shall be bound by any amendment or waiver
effected pursuant to this Section 6(g), whether or not any notice, writing or
marking indicating such amendment or waiver appears on such Registrable
Securities or is delivered to such holder.
23
<PAGE>
(h) Inspection. For so long as this Guarantee Exchange and
----------
Registration Rights Agreement shall be in effect, this Guarantee Exchange and
Registration Rights Agreement and a complete list of the names and addresses of
all the registered holders of Registrable Securities shall be made available for
inspection and copying on any business day, during normal business hours, by any
holder of Registrable Securities at the offices of Dominion Resources at the
address thereof set forth in Section 6(b) above.
(i) Counterparts. This agreement may be executed by the parties in
------------
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same instrument.
(j) Termination. Except for the respective indemnities,
-----------
representations and warranties set forth herein, this Guarantee Exchange and
Registration Rights Agreement shall terminate when all the Securities, Exchange
Securities and Registrable Securities cease to be outstanding.
24
<PAGE>
This Agreement is hereby executed as of the day and year first above
written.
DOMINION RESOURCES, INC.
By: /s/ Edgar M. Roach, Jr.
--------------------------------
Name: Edgar M. Roach, Jr.
Title: Executive Vice President
DOMINION RESOURCES CAPITAL TRUST I
/s/ G. Scott Hetzer
-----------------------------------
As Administrative Trustee
MORGAN STANLEY & CO. INCORPORATED
As Representative of the Purchasers
named in Schedule I to the Purchase
Agreement
By: /s/ Harold J. Hendershot III
--------------------------------
(Morgan Stanley & Co. Incorporated)
Acting severally, and not jointly
and severally, on behalf of
themselves and each of the
Purchasers named in Schedule I to
the Purchase Agreement
25
<PAGE>
EXHIBIT 4.13
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT dated as of December 8, 1997, between DOMINION RESOURCES, INC., a
Virginia corporation ("Dominion Resources"), and DOMINION RESOURCES CAPITAL
TRUST I, a Delaware business trust (the "Trust").
WHEREAS, the Trust intends to issue its 7.83% Common Securities (the
"Common Securities") to, and purchase 7.83% Junior Subordinated Deferrable
Interest Debentures (the "Debentures") from, Dominion Resources, and to issue
and sell its 7.83% Capital Securities (the "Private Capital Securities") with
such powers, preferences and special rights and restrictions as are set forth in
the Amended and Restated Trust Agreement of the Trust dated as of December 8,
1997, as the same may be amended from time to time (the "Trust Agreement");
WHEREAS, Dominion Resources will directly or indirectly own all of the
Common Securities of the Trust and will issue the Debentures;
WHEREAS, the Trust may issue a new series of 7.83% capital securities (the
"Exchange Capital Securities" and, together with the "Private Capital
Securities," the "Capital Securities") in connection with an exchange offer (the
"Exchange Offer") registered under the Securities Act of 1933, as amended;
NOW, THEREFORE, in consideration of the purchase by each holder of the
Capital Securities, which purchase Dominion Resources hereby agrees shall
benefit Dominion Resources and which purchase Dominion Resources acknowledges
will be made in reliance upon the execution and delivery of this Agreement,
Dominion Resources and the Trust hereby agree as follows:
ARTICLE I
GUARANTEE BY DOMINION RESOURCES
1.1 GUARANTEE BY DOMINION RESOURCES. Subject to the terms and conditions
-------------------------------
hereof, Dominion Resources hereby irrevocably and unconditionally guarantees to
each person or entity to whom the Trust is now or hereafter becomes indebted or
liable (the "Beneficiaries") the full payment, when and as due, of any and all
Obligations (as hereinafter defined) to such Beneficiaries. As used herein,
"Obligations" means any costs, expenses or liabilities of the Trust, other than
obligations of the Trust to pay to holders of any Capital Securities the amounts
due such holders pursuant to the terms of the Capital Securities. This
Agreement is intended to be for the benefit of, and to be enforceable by, all
such Beneficiaries, whether or not such Beneficiaries have received notice
hereof.
<PAGE>
1.2 TERMS OF AGREEMENT. This Agreement shall terminate and be of no
------------------
further force and effect upon the later of (a) the date on which full payment
has been made of all amounts payable to all holders of all the Capital
Securities (whether upon redemption, liquidation, exchange or otherwise) and (b)
the date on which there are no Beneficiaries remaining; provided, however, that
this Agreement shall continue to be effective or shall be reinstated, as the
case may be, if at any time any holder of Capital Securities or any Beneficiary
must restore payment of any sums paid under the Capital Securities, under any
Obligation, under the Capital Securities Guarantee Agreement dated the date
hereof by Dominion Resources Corporation and The Chase Manhattan Bank, as
guarantee trustee, or under this Agreement for any reason whatsoever. This
Agreement is continuing, irrevocable, unconditional and absolute.
1.3 WAIVER OF NOTICE. Dominion Resources hereby waives notice of
----------------
acceptance of this Agreement and of any Obligation to which it applies or may
apply, and Dominion Resources hereby waives presentment, demand for payment,
protest, notice of nonpayment, notice of dishonor, notice of redemption and all
other notices and demands.
1.4 NO IMPAIRMENT. The obligations, covenants, agreements and duties of
-------------
Dominion Resources under this Agreement shall in no way be affected or impaired
by reason of the happening from time to time of any of the following:
(a) the extension of time for the payment by the Trust of all or any
portion of the Obligations or for the performance of any other obligation under,
arising out of, or in connection with, the Obligations;
(b) any failure, omission, delay or lack of diligence on the part of
the Beneficiaries to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Beneficiaries with respect to the Obligations or any
action on the part of the Trust granting indulgence or extension of any kind; or
(c) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Trust or any of the assets of the
Trust.
There shall be no obligation of the Beneficiaries to give notice to, or obtain
the consent of, Dominion Resources with respect to the happening of any of the
foregoing.
2
<PAGE>
1.5 ENFORCEMENT. A Beneficiary may enforce this Agreement directly against
-----------
Dominion Resources, and Dominion Resources waives any right or remedy to require
that any action be brought against the Trust or any other person or entity
before proceeding against Dominion Resources.
1.6 SUBROGATION. Dominion Resources shall be subrogated to all rights (if
-----------
any) of the Trust in respect of any amounts paid to the Beneficiaries by
Dominion Resources under this Agreement; provided, however, that Dominion
Resources shall not (except to the extent required by mandatory provisions of
law) be entitled to enforce or exercise any rights which it may acquire by way
of subrogation or any indemnity, reimbursement or other agreement, in all cases
as a result of payment under this Agreement, if, at the time of any such
payment, any amounts are due and unpaid under this Agreement.
ARTICLE II
BINDING EFFECT
2.1 BINDING EFFECT. All guarantees and agreements contained in this
--------------
Agreement shall bind the successors, assigns, receivers, trustees and
representatives of Dominion Resources and shall inure to the benefit of the
Beneficiaries.
2.2 AMENDMENT. So long as there remains any Beneficiary or any Capital
---------
Securities of any series are outstanding, this Agreement shall not be modified
or amended in any manner adverse to such Beneficiary or to the holders of the
Capital Securities.
2.3 NOTICES. Any notice, request or other communication required or
-------
permitted to be given hereunder shall be given in writing by delivering the same
by personal delivery, by facsimile transmission or by first-class mail,
addressed as follows (and if so given, shall be deemed given when so delivered,
upon receipt of confirmation if by facsimile, or three days after mailed if by
first-class mail):
If to the Trust to:
Dominion Resources Capital Trust I
c/o Dominion Resources, Inc.
901 E. Byrd Street
Richmond, VA 23219
Attention: Treasurer
Telecopy No.: (804) 775-5819
3
<PAGE>
with a copy to:
Dominion Resources, Inc.
901 E. Byrd Street
Richmond, VA 23219
Attention: Treasurer
Telecopy No.: (804) 775-5819
2.4 GOVERNING LAW. This Agreement shall be governed by and construed and
-------------
interpreted in accordance with the laws of the Commonwealth of Virginia (without
regard to conflict of laws principles).
4
<PAGE>
THIS AGREEMENT is executed as of the day and year first above written.
DOMINION RESOURCES, INC.
BY: /s/ Edgar M. Roach, Jr.
--------------------------------
NAME: EDGAR M. ROACH, JR.
TITLE: EXECUTIVE VICE PRESIDENT
DOMINION RESOURCES CAPITAL TRUST I
BY: /s/ G. Scott Hetzer
--------------------------------
AS ADMINISTRATIVE TRUSTEE
5
<PAGE>
EXHIBIT 5.1
MCGUIRE WOODS
BATTLE & BOOTHE LLP
One James Center
901 East Cary Street
Richmond, Virginia 23219-4030
April 20, 1998
Dominion Resources, Inc.
901 E. Byrd Street
Richmond, VA 23219
DOMINION RESOURCES, INC.
DOMINION RESOURCES CAPITAL TRUST I
REGISTRATION STATEMENT ON FORM S-4
FILE NO. 333-_____
(THE "REGISTRATION STATEMENT")
Ladies and Gentlemen:
We have acted as counsel to Dominion Resources, Inc., a Virginia
corporation (the "Corporation") and Sponsor of Dominion Resources Capital Trust
I, a Delaware statutory business trust (the "Trust"), in connection with a
Registration Statement on Form S-4 (the "Registration Statement") relating to
(i) the proposed issuance by the Trust of $250,000,000 aggregate Liquidation
Amount of the Trust's 7.83% Capital Securities (the "New Capital Securities")
registered under the Securities Act of 1933, as amended (the "Securities Act"),
in exchange for up to $250,000,000 aggregate Liquidation Amount of the Trust's
outstanding 7.83% Capital Securities (the "Old Capital Securities"), (ii) the
proposed issuance by the Corporation to the Trust, in an aggregate principal
amount corresponding to the aggregate Liquidation Amount of the New Capital
Securities, of the Corporation's 7.83% Junior Subordinated Deferrable Interest
Debentures due December 1, 2027 (the "New Junior Subordinated Debentures")
registered under the Securities Act in exchange for a comparable aggregate
principal amount of the Company's outstanding 7.83% Junior Subordinated
Deferrable Interest Debentures due December 1, 2027 (the "Old Junior
Subordinated Debentures"), and (iii) the Corporation's guarantee of the New
Capital Securities and undertakings in respect of the New Capital Securities
(the "New Guarantee") registered under the Securities Act in exchange for the
Corporation's guarantee of the Old Capital Securities and undertakings in
respect of the Old Capital Securities (the "Old Guarantee"). The New Capital
Securities will be issued under an Amended and Restated Trust Agreement for the
Trust, dated December 8, 1997 (the "Amended Trust Agreement"), among the
Corporation, as Sponsor, The Chase Manhattan Bank, as property trustee, The
Chase Manhattan Bank
<PAGE>
Dominion Resources, Inc.
April 20, 1998
Page 2
Delaware, as Delaware trustee, and the Administrative Trustees named therein,
while the New Junior Subordinated Debentures will be issued under an Indenture,
dated as of December 1, 1997 (the "Indenture") between the Corporation and The
Chase Manhattan Bank, as debenture trustee.
We have examined such documents and records as we deemed appropriate,
including the following:
(i) Copy of the Amended Articles of Organization of the
Corporation, certified by the Secretary of State of the State of Virginia.
(ii) Copy of the By-Laws of the Corporation, as amended, certified
by an Assistant Secretary of the Corporation to be a true and complete
copy.
(iii) Copy, certified by an Assistant Secretary of the Corporation to
be a true copy, of the resolutions adopted by the Board of Directors of the
Corporation on October 17, 1997 and the Action of an Executive Committee,
dated December 3, 1997 authorizing the filing of the Registration Statement
and the exchange of the New Capital Securities, the New Junior Subordinated
Debentures and the New Guarantee under the circumstances referred to above.
(iv) Executed counterparts of the Amended Trust Agreement.
(v) Executed counterparts of the Agreement as to Expenses and
Liabilities, dated as of December 8, 1997 between the Company and the
Trust.
(vi) Executed counterparts of the Indenture.
(vii) Form of the new Guarantee Agreement.
(viii) Executed counterparts of the Registration Rights Agreements,
each dated as of December 8, 1997 (the "Registration Rights Agreements"),
among the Trust, the Corporation and the Initial Purchasers named therein.
We have assumed that the form of the New Capital Security and the New
Junior Subordinated Debenture will be as set forth in the Amended Trust
Agreement and the Indenture,respectively, and will be the same as the forms of
the Old Capital Security and the Old Junior Subordinated Debenture, except as
set forth in the Registration Statement.
<PAGE>
Dominion Resources, Inc.
April 20, 1998
Page 3
In addition, as to questions of fact material to our opinion, we have
relied upon certificates and representations of officers of the Corporation, the
Administrative Trustees of the Trust and public officials.
In the course of our examination, we have assumed the legal capacity of all
natural persons, the genuineness of all signatures, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
all documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such latter documents. In making our
examination of the documents, instruments and agreements referred to in the
first two paragraphs of this opinion, we have assumed that all parties signing
the same had the power, corporate or other, to enter into and perform all
obligations thereunder and have also assumed the due authorization by all
requisite action, corporate or other, and execution and delivery by such parties
of such documents, instruments and agreements and, except in the case of the
Corporation or the Trust, the validity and binding effect thereof on such
parties.
Based upon the foregoing, we are of the opinion that:
(1) The New Junior Subordinated Debentures have been duly authorized by
all requisite corporate action of the Corporation and, when established,
executed and authenticated in the manner provided for in the Indenture and
delivered against surrender and cancellation of a like aggregate principal
amount of Old Junior Subordinated Debentures as contemplated in the Registration
Rights Agreements, the New Junior Subordinated Debentures will constitute valid
and binding obligations of the Corporation entitled to the benefits of the
Indenture and enforceable against the Corporation in accordance with their
terms, except as enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
creditors' rights generally or by general equitable principles (regardless of
whether considered in a proceeding in equity or at law).
(2) The New Guarantee has been duly authorized by all requisite corporate
action of the Corporation and, when executed and delivered to The Chase
Manhattan Bank, as guarantee trustee, as contemplated in the Registration Rights
Agreements, the New Guarantee will constitute a valid and binding agreement of
the Corporation, enforceable against the Corporation in accordance with its
terms, except as enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
creditors' rights generally
<PAGE>
Dominion Resources, Inc.
April 20, 1998
Page 4
or by general equitable principles (regardless of whether considered in a
proceeding in equity or at law).
We do not purport to express an opinion on any laws other than those of the
Commonwealth of Virginia, the State of New York and the United States of
America.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our firm under the caption
"Validity of Securities" contained in the Prospectus included therein. In giving
such consent we do not admit that we are in the category of persons whose
consent is required under Section 7 of the Securities Act.
Very truly yours,
McGuire, Woods,
Battle & Boothe LLP
<PAGE>
EXHIBIT 5.2
Potter Anderson and Carroon LLP
P.O. Box 951
Wilmington, Delaware 19899
April 20, 1998
Dominion Resources, Inc.
901 East Byrd Street
Suite 1700
Richmond, VA 23219-6111
Re: 7.83% Capital Securities
Dominion Resources Capital Trust I
----------------------------------
Ladies and Gentlemen:
We have acted as special Delaware counsel for Dominion Resources
Capital Trust I, a Delaware statutory business trust (the "Trust") in connection
with the matters set forth herein and that certain Amended and Restated Trust
Agreement (the "Trust Agreement"), dated as of December 8, 1997, entered into by
and among Dominion Resources, Inc., as Depositor, The Chase Manhattan Bank, as
Property Trustee, Chase Manhattan Bank Delaware, as Delaware Trustee, and the
Administrative Trustees named therein. Initially capitalized terms used herein
and not otherwise defined are used herein as defined in the Trust Agreement.
For purposes of giving the opinions hereinafter set forth, we have
examined only the following documents and have conducted no independent factual
investigations of our own:
1. The Certificate of Trust for the Trust, dated as of October 31,
1997 (the "Certificate"), as filed in the Office of the Secretary of State of
the State of Delaware (the "Secretary of State") on October 31, 1997;
2. The initial trust agreement of the Trust, dated as of October 31,
1997, by and between Dominion Resources, Inc., as Depositor, and Chase Manhattan
Bank Delaware, as Delaware Trustee (the "Initial Trust Agreement");
3. The Trust Agreement;
<PAGE>
Dominion Resources, Inc.
April 20, 1998
Page 2
4. A Certificate of Good Standing for the Trust, dated April 20,
1998, obtained from the Secretary of State of the State of Delaware; and
5. The Registration Statement on Form S-4 (the "Registration
Statement"), including a prospectus with respect to the Trust (the
"Prospectus"), relating to, among other things, an Exchange Offer (the "Exchange
Offer") involving the issuance by the Trust of its 7.83% Capital Securities
representing preferred, undivided beneficial interests in the assets of the
Trust (each, a "New Capital Security" and collectively, the "New Capital
Securities"), to be offered in exchange for the presently outstanding 7.83%
Capital Securities of the Trust (the "Old Capital Securities"), filed by the
Depositor and the Trust with the Securities and Exchange Commission.
As to certain facts material to the opinions expressed herein, we have
relied upon the representations and warranties contained in the documents
examined by us all of which we have assumed to be true, complete and accurate in
all material respects. The documents referred to in paragraphs 1, 2, 3 and 5
above are hereinafter collectively referred to as the "Agreements."
Based upon the foregoing, and upon an examination of such questions of
law of the State of Delaware as we have considered necessary or appropriate, and
subject to the assumptions, qualifications, limitations and exceptions set forth
herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Business Trust Act.
2. The New Capital Securities, upon issuance pursuant to the
Exchange Offer, will represent valid, and, subject to the qualifications set
forth in number 3 below, fully paid and non-assessable undivided beneficial
interests in the assets of the Trust.
3. The Holders of New Capital Securities, as beneficial owners of
New Capital Securities of the Trust, will be entitled to the same limitation of
personal liability extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware, except
that the Holders of New Capital Securities may
<PAGE>
Dominion Resources, Inc.
April 20, 1998
Page 3
be obligated to (a) provide indemnity and/or security in connection with and pay
taxes or governmental charges arising from transfers or exchanges of
certificates representing New Capital Securities and the issuance of replacement
certificates representing New Capital Securities, and (b) provide security or
indemnity in connection with requests of or directions to the Property Trustee
to exercise its rights and powers under the Trust Agreement.
All of the foregoing opinions contained herein are subject to the
following assumptions, qualifications, limitations and exceptions:
a. The foregoing opinions are limited to the laws of the State
of Delaware presently in effect, excluding the securities laws thereof. We have
not considered and express no opinion on the laws of any other jurisdiction,
including, without limitation, federal laws and rules and regulations relating
thereto.
b. We have assumed the due execution and delivery by each party
listed as a party to each document examined by us. We have assumed further the
due authorization by each party thereto (exclusive of the Trust) of each
document examined by us, and that each of such parties (exclusive of the Trust)
has the full corporate, or trust or banking, power, authority, and legal right
to execute, deliver and perform each such document. We also have assumed that
each of the parties to each of the Agreements (exclusive of the Trust and the
Administrative Trustees) is a corporation, bank, national banking association or
trust company, validly existing and in good standing under the laws of their
respective jurisdictions of organization and that the Agreements to which they
are a party do not result in the breach of the terms of, and do not contravene
their respective constituent documents, any contractual restriction binding on
them or any law, rule or regulation applicable to them. In addition, we have
assumed the legal capacity of any natural persons who are parties to any of the
documents examined by us.
c. We have assumed that all signatures on documents examined by
us are genuine, that all documents submitted to us as originals are authentic
and that all documents submitted to us as copies conform with the originals.
d. We have assumed that the Initial Trust Agreement and the
Trust Agreement collectively, constitute the
<PAGE>
Dominion Resources, Inc.
April 20, 1998
Page 4
entire agreement among each of the respective parties thereto with respect to
the subject matter thereof, including with respect to the creation, operation,
dissolution and winding up of the Trust and that the Trust Agreement and the
Certificate are in full force and effect.
e. We have assumed that no event set forth in Article 9 of the
Trust Agreement has occurred.
f. We have assumed that the New Capital Securities will be
issued and exchanged in accordance with the Trust Agreement and the Prospectus.
We have further assumed the receipt of each Person to whom a New Capital
Security is to be issued by the Trust of a certificate for such New Capital
Security and the exchange by it of an equivalent liquidation amount of Old
Capital Securities in accordance with the Trust Agreement and the Prospectus.
g. We note that we have not participated in the preparation,
and do not assume responsibility for the contents, of the Registration Statement
or the Prospectus.
We consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement. In addition, we
hereby consent to the use of our name under the heading "Validity of Securities"
in the Prospectus. In giving the foregoing consents, we do not thereby admit
that we come within the category of Persons whose consent is required under
Section 7 of the Securities Act of 1933, as amended, or the rules and
regulations of the Securities and Exchange Commission thereunder.
Very truly yours,
/s/ Potter Anderson & Carroon, LLP
<PAGE>
EXHIBIT 8
McGuire, Woods, Battle & Boothe LLP
One James Center
Richmond, VA 23219-4030
April 20, 1998
Dominion Resources, Inc.
901 East Byrd Street
Richmond, VA 23219
Dominion Resources Capital Trust I
901 East Byrd Street
Richmond, VA 23219
DOMINION RESOURCES, INC.
DOMINION RESOURCES CAPITAL TRUST I
REGISTRATION STATEMENT ON FORM S-4
FILE NO. 333-
Ladies and Gentlemen:
We have acted as special tax counsel for Dominion Resources, Inc. (the
"Company") and Dominion Resources Capital Trust I (the "Trust") in connection
with the offer to exchange up to U.S. $250,000,000 of the Trust's 7.83% Capital
Securities which have been registered under the Securities Act of 1933, as
amended, for a like Liquidation Amount of the Trust's outstanding 7.83% Capital
Securities. In rendering our opinion, we have examined the Amended and Restated
Trust Agreement (the "Trust Agreement") and have assumed that the Issuer
Trustees will conduct the affairs of the Trust in accordance with the Trust
Agreement. We hereby confirm the opinions described under the caption "Certain
Federal Income Tax Consequences" in the prospectus (the "Prospectus") that is
part of the Registration Statement on Form S-4 filed by the Company and the
Trust with the Securities and Exchange Commission. Capitalized terms used herein
but not defined have the meanings as provided in the Prospectus.
We hereby consent to the use of our name under the caption "Certain Federal
Income Tax Consequences" in the Prospectus. The issuance of such a consent does
not concede that we are "Expert" for purposes of the Securities Act of 1933.
Very truly yours,
/s/ McGuire, Woods, Battle & Boothe LLP
<PAGE>
EXHIBIT 12
DOMINION RESOURCES, INC.
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(millions, except ratios)
<TABLE>
<CAPTION>
Twelve Months Ended December 31,
-------------------------------------------------------------------------
1997* 1996 1995 1994 1993
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Net Income $ 399.2 $ 472.1 $ 425.0 $ 478.2 $ 516.6
Add: Income Taxes 233.0 219.3 187.1 180.1 217.9
-------------------------------------------------------------------------
Total 632.2 691.4 612.1 658.3 734.5
-------------------------------------------------------------------------
Fixed Charges:
Interest charges 640.8 399.8 390.1 364.5 377.0
Estimated Interest Factor of
Rent Charged to Operating
Expenses, Clearings, and
Other Accounts 7.8 5.6 5.9 6.5 5.1
-------------------------------------------------------------------------
Total Fixed Charges 648.6 405.4 396.0 371.0 382.1
-------------------------------------------------------------------------
Earnings as Defined $ 1,280.8 $ 1,096.8 $ 1,008.1 $ 1,029.3 $ 1,116.6
-------------------------------------------------------------------------
Ratio of Earnings to Fixed Charges 1.97 2.71 2.55 2.77 2.92
=========================================================================
</TABLE>
* Net income for the twelve months ended December 31, 1997 includes the one time
charge of $156.6 million for the windfall profits tax levied by the United
Kingdom government. Excluding this charge from the calculation above results in
a ratio of earnings to fixed charges for the twelve months ended December 31,
1997 of 2.24x.
<PAGE>
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration Statement of
Dominion Resources, Inc. on Form S-4 of our report dated February 9, 1998,
appearing in and incorporated by reference in the Annual Report on Form 10-K of
Dominion Resources, Inc. for the year ended December 31, 1997 and to the
reference to us under the heading "Experts" in the Prospectus which is part of
this Registration Statement.
Deloitte & Touche LLP
Richmond, Virginia
April 21, 1998
<PAGE>
EXHIBIT 25.1
________________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
________________________
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
__________________________________________
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
________________________________________
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
____________________________________________
DOMINION RESOURCES, INC..
(Exact name of obligor as specified in its charter)
VIRGINIA 54-1229715
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
901 E. BYRD STREET
SUITE 1700
RICHMOND, VIRGINIA 23219-6111
(Address of principal executive offices) (Zip Code)
---------------------------------------------------
JUNIOR SUBORDINATED DEFERRABLE INTEREST
DEBENTURES
(Title of the indenture securities)
---------------------------------------------------
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington,
D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee,
published pursuant to law or the requirements of its supervising or examining
authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 14th day of April, 1998.
THE CHASE MANHATTAN BANK
By /s/ P. Kelly
-----------------------------
P. Kelly
Vice President
-3-
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business December 31, 1997, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
DOLLAR AMOUNTS
ASSETS IN MILLIONS
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin............................................ $ 12,428
Interest-bearing balances.................................... 3,428
Securities:........................................
Held to maturity securities.................................... 2,561
Available for sale securities.................................. 43,058
Federal funds sold and securities purchased under
agreements to resell......................................... 29,633
Loans and lease financing receivables:
Loans and leases, net of unearned income..................... $129,260
Less: Allowance for loan and lease losses.................... 2,783
Less: Allocated transfer risk reserve........................ 0
--------
Loans and leases, net of unearned income,
allowance, and reserve....................................... 126,477
Trading Assets................................................. 62,575
Premises and fixed assets (including capitalized
leases)...................................................... 2,943
Other real estate owned........................................ 295
Investments in unconsolidated subsidiaries and
associated companies......................................... 231
Customers' liability to this bank on acceptances
outstanding.................................................. 1,698
Intangible assets.............................................. 1,466
Other assets................................................... 10,268
--------
TOTAL ASSETS................................................... $297,061
========
</TABLE>
-4-
<PAGE>
LIABILITIES
<TABLE>
<CAPTION>
<S> <C>
Deposits
In domestic offices...................................... $ 94,524
Noninterest-bearing ..................................... $ 39,487
Interest-bearing ........................................ 55,037
In foreign offices, Edge and Agreement,
subsidiaries and IBF's................................... 71,162
Noninterest-bearing ..................................... $ 3,205
Interest-bearing......................................... 67,957
Federal funds purchased and securities sold under
agreements to repurchase.................................. 43,181
Demand notes issued to the U.S. Treasury................... 1,000
Trading liabilities........................................ 48,903
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less............ 3,599
With a remaining maturity of more than one year .
through three years................................. 253
With a remaining maturity of more than three years....... 132
Bank's liability on acceptances executed and outstanding... 1,698
Subordinated notes and debentures.......................... 5,715
Other liabilities.......................................... 9,896
TOTAL LIABILITIES.......................................... 280,063
--------
</TABLE>
EQUITY CAPITAL
<TABLE>
<CAPTION>
<S> <C>
Perpetual preferred stock and related surplus.............. 0
Common stock............................................... 1,211
Surplus (exclude all surplus related to preferred stock).. 10,291
Undivided profits and capital reserves..................... 5,502
Net unrealized holding gains (losses)
on available-for-sale securities........................... (22)
Cumulative foreign currency translation adjustments........ 16
TOTAL EQUITY CAPITAL....................................... 16,998
--------
TOTAL LIABILITIES AND EQUITY CAPITAL....................... $297,061
========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the in-structions
issued by the appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR.)
-5-
<PAGE>
EXHIBIT 25.2
_________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
_________________________
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
___________________________________________
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
________________________________________
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
____________________________________________
DOMINION RESOURCES CAPITAL TRUST I
(Exact name of obligor as specified in its charter)
DELAWARE 54-1888842
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
901 E. BYRD STREET
SUITE 1700
RICHMOND, VIRGINIA 23219-6111
(Address of principal executive offices) (Zip Code)
_______________________________________
CAPITAL SECURITIES
(Title of the indenture securities)
_________________________________________________
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington,
D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
- 2 -
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996,
in connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee,
published pursuant to law or the requirements of its supervising or examining
authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 14th day of April, 1998.
THE CHASE MANHATTAN BANK
By /s/ P. Kelly
-----------------------------
P. Kelly
Vice President
- 3 -
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business December 31, 1997, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
DOLLAR AMOUNTS
ASSETS IN MILLIONS
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin......................................... $ 12,428
Interest-bearing balances................................. 3,428
Securities:................................................
Held to maturity securities................................ 2,561
Available for sale securities.............................. 43,058
Federal funds sold and securities purchased under
agreements to resell...................................... 29,633
Loans and lease financing receivables:
Loans and leases, net of unearned income.................. $129,260
Less: Allowance for loan and lease losses................. 2,783
Less: Allocated transfer risk reserve..................... 0
--------
Loans and leases, net of unearned income,
allowance, and reserve.................................... 126,477
Trading Assets............................................. 62,575
Premises and fixed assets (including capitalized
leases)................................................... 2,943
Other real estate owned.................................... 295
Investments in unconsolidated subsidiaries and
associated companies...................................... 231
Customers' liability to this bank on acceptances
outstanding............................................... 1,698
Intangible assets.......................................... 1,466
Other assets............................................... 10,268
--------
TOTAL ASSETS............................................... $297,061
========
</TABLE>
-4-
<PAGE>
LIABILITIES
<TABLE>
<S> <C>
Deposits
In domestic offices.......................................... $ 94,524
Noninterest-bearing.......................................... $ 39,487
Interest-bearing............................................. 55,037
In foreign offices, Edge and Agreement,
subsidiaries and IBF's....................................... 71,162
Noninterest-bearing .......................................... $ 3,205
Interest-bearing............................................. 67,957
Federal funds purchased and securities sold under
agreements to repurchase...................................... 43,181
Demand notes issued to the U.S. Treasury....................... 1,000
Trading liabilities............................................ 48,903
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less................ 3,599
With a remaining maturity of more than one year.
through three years.......................................... 253
With a remaining maturity of more than three
years................................................... 132
Bank's liability on acceptances executed and
outstanding................................................... 1,698
Subordinated notes and debentures.............................. 5,715
Other liabilities.............................................. 9,896
TOTAL LIABILITIES.............................................. 280,063
--------
EQUITY CAPITAL
Perpetual preferred stock and related surplus.................. 0
Common stock................................................... 1,211
Surplus (exclude all surplus related to preferred stock)...... 10,291
Undivided profits and capital reserves......................... 5,502
Net unrealized holding gains (losses)
on available-for-sale securities............................... (22)
Cumulative foreign currency translation adjustments............ 16
TOTAL EQUITY CAPITAL........................................... 16,998
--------
TOTAL LIABILITIES AND EQUITY CAPITAL........................... $297,061
========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR.)
-5-
<PAGE>
EXHIBIT 25.3
____________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
_________________________
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
___________________________________________
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
________________________________________
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
____________________________________________
DOMINION RESOURCES, INC..
(Exact name of obligor as specified in its charter)
VIRGINIA 54-1229715
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
901 E. BYRD STREET
SUITE 1700
RICHMOND, VIRGINIA 23219-6111
(Address of principal executive offices) (Zip Code)
__________________________________________
CAPITAL SECURITIES GUARANTEE
(DOMINIOM RESOURCES CAPTIAL TRUST I)
(Title of the indenture securities)
____________________________________________________
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington,
D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996,
in connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee,
published pursuant to law or the requirements of its supervising or examining
authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 14th day of April, 1998.
THE CHASE MANHATTAN BANK
By /s/ P. Kelly
----------------------------
P. Kelly
Vice President
- 3 -
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business December 31, 1997, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
DOLLAR AMOUNTS
ASSETS IN MILLIONS
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin........................................... $ 12,428
Interest-bearing balances................................... 3,428
Securities:........................................
Held to maturity securities................................... 2,561
Available for sale securities................................. 43,058
Federal funds sold and securities purchased under
agreements to resell........................................ 29,633
Loans and lease financing receivables:
Loans and leases, net of unearned income.................... $129,260
Less: Allowance for loan and lease losses................... 2,783
Less: Allocated transfer risk reserve....................... 0
--------
Loans and leases, net of unearned income,
allowance, and reserve...................................... 126,477
Trading Assets................................................ 62,575
Premises and fixed assets (including capitalized
leases)..................................................... 2,943
Other real estate owned....................................... 295
Investments in unconsolidated subsidiaries and
associated companies........................................ 231
Customers' liability to this bank on acceptances
outstanding................................................. 1,698
Intangible assets............................................. 1,466
Other assets.................................................. 10,268
--------
TOTAL ASSETS.................................................. $297,061
========
</TABLE>
-4-
<PAGE>
LIABILITIES
<TABLE>
<CAPTION>
<S> <C>
Deposits
In domestic offices...................................... $ 94,524
Noninterest-bearing ..................................... $ 39,487
Interest-bearing ....................................... 55,037
In foreign offices, Edge and Agreement,
subsidiaries and IBF's. ............................... 71,162
Noninterest-bearing ..................................... $ 3,205
Interest-bearing ........................................ 67,957
Federal funds purchased and securities sold under
agreements to repurchase.................................. 43,181
Demand notes issued to the U.S. Treasury................... 1,000
Trading liabilities........................................ 48,903
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less............ 3,599
With a remaining maturity of more than one year .
through three years................................. 253
With a remaining maturity of more than three years....... 132
Bank's liability on acceptances executed and outstanding... 1,698
Subordinated notes and debentures.......................... 5,715
Other liabilities.......................................... 9,896
TOTAL LIABILITIES.......................................... 280,063
--------
</TABLE>
EQUITY CAPITAL
<TABLE>
<CAPTION>
<S> <C>
Perpetual preferred stock and related surplus.............. 0
Common stock............................................... 1,211
Surplus (exclude all surplus related to preferred stock).. 10,291
Undivided profits and capital reserves..................... 5,502
Net unrealized holding gains (losses)
on available-for-sale securities........................... (22)
Cumulative foreign currency translation adjustments........ 16
TOTAL EQUITY CAPITAL....................................... 16,998
--------
TOTAL LIABILITIES AND EQUITY CAPITAL....................... $297,061
========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the in-structions
issued by the appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR.)
-5-
<PAGE>
EXHIBIT 99.1
LETTER OF TRANSMITTAL
DOMINION RESOURCES CAPITAL TRUST I
Offer to Exchange its
7.83% Capital Securities
(Liquidation Amount $1,000 per Capital Security)
which have been registered under the Securities Act of 1933
for any and all of its outstanding
7.83% Capital Securities
(Liquidation Amount $1,000 per Capital Security)
Pursuant to the Prospectus
dated May __, 1998
______________
- --------------------------------------------------------------------------------
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M.,
NEW YORK CITY TIME, ON_____, 1998, UNLESS THE OFFER IS EXTENDED.
- --------------------------------------------------------------------------------
______________
THE EXCHANGE AGENT FOR THE EXCHANGE OFFER IS:
THE CHASE MANHATTAN BANK
By Registered or Certified Mail By Overnight Courier or Hand
The Chase Manhattan Bank The Chase Manhattan Bank
55 Water Street 55 Water Street
Room 234, North Building Room 234, North Building
New York, New York 10041 New York, New York 10041
Attn: Carlos Esteves Attn: Carlos Esteves
To Confirm by Telephone: By Facsimile Transmission:
(212) 638-0828 (212) 638-7380 or 7381
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET
FORTH ABOVE OR TRANSMISSION OF THIS LETTER OF TRANSMITTAL VIA FACSIMILE TO A
NUMBER OTHER THAN AS SET FORTH ABOVE DOES NOT CONSTITUTE A VALID DELIVERY.
THE INSTRUCTIONS CONTAINED HEREIN SHOULD BE READ CAREFULLY BEFORE THIS
LETTER OF TRANSMITTAL IS COMPLETED.
Capitalized terms used but not defined herein shall have the same meaning
given them in the Prospectus (as defined below).
This Letter of Transmittal is to be completed by holders of Old Capital
Securities (as defined below) either if Old Capital Securities are to be
forwarded herewith or if tenders of Old Capital Securities are to be made by
book-entry transfer to an account maintained by The Chase Manhattan Bank (the
"Exchange Agent") at The Depository Trust Company ("DTC") pursuant to the
procedures set forth in "The Exchange Offer--Procedures for Tendering Old
Capital Securities" in the Prospectus unless an Agent's message is transmitted
in lieu hereof.
Holders of Old Capital Securities whose certificates (the "Certificates")
for such Old Capital Securities are not immediately available or who cannot
deliver their Certificates and all other required documents to the Exchange
Agent on or prior to the Expiration Date (as defined in the Prospectus) or who
cannot complete the procedures for
<PAGE>
book-entry transfer on a timely basis, must tender their Old Capital Securities
according to the guaranteed delivery procedures set forth in "The Exchange
Offer--Procedures for Tendering Old Capital Securities" in the Prospectus
unless an Agent's message is transmitted in lieu thereof.
DELIVERY OF DOCUMENTS TO DTC DOES NOT CONSTITUTE DELIVERY TO THE EXCHANGE
AGENT.
NOTE: SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
ALL TENDERING HOLDERS COMPLETE THIS BOX:
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
DESCRIPTION OF OLD CAPITAL SECURITIES TENDERED
- -----------------------------------------------------------------------------------------------------------------------------------
If blank, please print name and address of registered Old Capital Securities tendered
holder. (Attach additional list if necessary)
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Certificate Aggregate Principal Principal Amount of Old
Number(s)* Amount of Old Capital Capital Securities Tendered
Securities (if less than all)**
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
TOTAL AMOUNT
TENDERED:
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
* Need not be completed by book-entry holders.
** Old Capital Securities may be tendered in whole or in part in denominations
of $100,000 and integral multiples of $1,000 in excess thereof, provided
that if any Old Capital Securities are tendered for exchange in part, the
untendered principal amount thereof must be $100,000 or any integral
multiple of $1,000 in excess thereof. All Old Capital Securities held shall
be deemed tendered unless a lesser number is specified in this column.
- --------------------------------------------------------------------------------
2
<PAGE>
(BOXES BELOW TO BE CHECKED BY ELIGIBLE INSTITUTIONS ONLY)
[_] CHECK HERE IF TENDERED OLD CAPITAL SECURITIES ARE BEING DELIVERED BY BOOK-
ENTRY TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE EXCHANGE AGENT WITH
DTC AND COMPLETE THE FOLLOWING:
Name of Tendering Institution____________________________________
DTC Account Number_______________________________________________
Transaction Code Number__________________________________________
[_] CHECK HERE AND ENCLOSE A PHOTOCOPY OF THE NOTICE OF GUARANTEED DELIVERY IF
TENDERED OLD CAPITAL SECURITIES ARE BEING DELIVERED PURSUANT TO A NOTICE OF
GUARANTEED DELIVERY PREVIOUSLY SENT TO THE EXCHANGE AGENT AND COMPLETE THE
FOLLOWING:
Name of Registered Holder(s)_____________________________________
Window Ticket Number (if any)____________________________________
Date of Execution of Notice of Guaranteed Delivery_______________
Name of Institution which Guaranteed Delivery____________________
If Guaranteed Delivered is to be made By Book-Entry Transfer:
Name of Tendering Institution________________________________
DTC Account Number___________________________________________
Transaction Code Number___________________________________________
[_] CHECK HERE IF TENDERED BY BOOK-ENTRY TRANSFER AND NON-EXCHANGED OLD CAPITAL
SECURITIES ARE TO BE RETURNED BY CREDITING THE DTC ACCOUNT NUMBER SET FORTH
ABOVE.
[_] CHECK HERE IF YOU ARE A BROKER-DEALER WHO ACQUIRED THE OLD CAPITAL
SECURITIES FOR ITS OWN ACCOUNT AS A RESULT OF MARKET MAKING OR OTHER
TRADING ACTIVITIES (A "PARTICIPATING BROKER-DEALER") AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR
SUPPLEMENTS THERETO.
Name:____________________________________________________________
Address:_________________________________________________________
_________________________________________________________
3
<PAGE>
Ladies and Gentlemen:
The undersigned hereby tenders to Dominion Resources Capital Trust I, a
trust formed under the laws of the State of Delaware (the "Trust"), and Dominion
Resources, Inc., a Virginia corporation, (the "Corporation"), the above
described aggregate Liquidation Amount of the Trust's 7.83% Capital Securities
(the "Old Capital Securities") in exchange for a like aggregate Liquidation
Amount of the Trust's 7.83% Capital Securities (the "New Capital Securities")
which have been registered under the Securities Act of 1933 (the "Securities
Act"), upon the terms and subject to the conditions set forth in the Prospectus
dated May __, 1998 (as the same may be amended or supplemented from time to
time, the "Prospectus"), receipt of which is acknowledged, and in this Letter of
Transmittal (which, together with the Prospectus, constitutes the "Exchange
Offer").
Subject to and effective upon the acceptance for exchange of all or any
portion of the Old Capital Securities tendered herewith in accordance with the
terms and conditions of the Exchange Offer (including, if the Exchange Offer is
extended or amended, the terms and conditions of any such extension or
amendment), the undersigned hereby sells, assigns and transfers to or upon the
order of the Trust all right, title and interest in and to such Old Capital
Securities as are being tendered herewith. The undersigned hereby irrevocably
constitutes and appoints the Exchange Agent as its agent and attorney-in-fact
(with full knowledge that the Exchange Agent is also acting as agent of the
Corporation and the Trust in connection with the Exchange Offer) with respect to
the tendered Old Capital Securities, with full power of substitution (such power
of attorney being deemed to be an irrevocable power coupled with an interest),
subject only to the right of withdrawal described in the Prospectus, to (i)
deliver Certificates for Old Capital Securities to the Corporation or the Trust
together with all accompanying evidences of transfer and authenticity to, or
upon the order of, the Trust, upon receipt by the Exchange Agent, as the
undersigned's agent, of the New Capital Securities to be issued in exchange for
such Old Capital Securities, (ii) present Certificates for such Old Capital
Securities for transfer, and to transfer the Old Capital Securities on the books
of the Trust, and (iii) receive for the account of the Trust all benefits and
otherwise exercise all rights of beneficial ownership of such Old Capital
Securities, all in accordance with the terms and conditions of the Exchange
Offer.
THE UNDERSIGNED HEREBY REPRESENTS AND WARRANTS THAT THE UNDERSIGNED HAS
FULL POWER AND AUTHORITY TO TENDER, EXCHANGE, SELL, ASSIGN AND TRANSFER THE OLD
CAPITAL SECURITIES TENDERED HEREBY AND THAT, WHEN THE SAME ARE ACCEPTED FOR
EXCHANGE, THE TRUST WILL ACQUIRE GOOD, MARKETABLE AND UNENCUMBERED TITLE
THERETO, FREE AND CLEAR OF ALL LIENS, RESTRICTIONS, CHARGES AND ENCUMBRANCES,
AND THAT THE OLD CAPITAL SECURITIES TENDERED HEREBY ARE NOT SUBJECT TO ANY
ADVERSE CLAIMS OR PROXIES. THE UNDERSIGNED WILL, UPON REQUEST, EXECUTE AND
DELIVER ANY ADDITIONAL DOCUMENTS DEEMED BY THE CORPORATION, THE TRUST OR THE
EXCHANGE AGENT TO BE NECESSARY OR DESIRABLE TO COMPLETE THE EXCHANGE, ASSIGNMENT
AND TRANSFER OF THE OLD CAPITAL SECURITIES TENDERED HEREBY, AND THE UNDERSIGNED
WILL COMPLY WITH ITS OBLIGATIONS UNDER THE REGISTRATION RIGHTS AGREEMENT. THE
UNDERSIGNED HAS READ AND AGREES TO ALL OF THE TERMS OF THE EXCHANGE OFFER.
The name(s) and address(es) of the registered holder(s) of the Old Capital
Securities tendered hereby should be printed above, if they are not already set
forth above, as they appear on the Certificates representing such Old Capital
Securities. The Certificate number(s) and the Old Capital Securities that the
undersigned wishes to tender should be indicated in the appropriate boxes
above.
If any tendered Old Capital Securities are not exchanged pursuant to the
Exchange Offer for any reason, or if Certificates are submitted for more Old
Capital Securities than are tendered or accepted for exchange, Certificates for
such nonexchanged or nontendered Old Capital Securities will be returned (or, in
the case of Old Capital Securities tendered by book-entry transfer, such Old
Capital Securities will be credited to an account maintained at DTC), without
expense to the tendering holder, promptly following the expiration or
termination of the Exchange Offer.
The undersigned understands that tenders of Old Capital Securities pursuant
to any one of the procedures described in "The Exchange Offer--Procedures for
Tendering Old Capital Securities" in the Prospectus and in the instruction will,
upon the Corporation's and the Trust's acceptance for exchange of such tendered
Old Capital Securities, constitute a binding agreement between the undersigned,
the Corporation and the Trust upon the terms and subject to the conditions of
the Exchange Offer. The undersigned recognizes that, under certain
circumstances set forth in the Prospectus, the Corporation and the Trust may not
be required to accept for exchange any of the Old Capital Securities tendered
hereby.
<PAGE>
Unless otherwise indicated herein in the box entitled "Special Issuance
Instructions" below, the undersigned hereby directs that the New Capital
Securities be issued in the name(s) of the undersigned or, in the case of a
book-entry transfer of Old Capital Securities, that such New Capital
Securities be credited to the account indicated above maintained at DTC. If
applicable, substitute Certificates representing Old Capital Securities not
exchanged or not accepted for exchange will be issued to the undersigned or,
in the case of a book-entry transfer of Old Capital Securities, will be
credited to the account indicated above maintained at DTC. Similarly, unless
otherwise indicated under "Special Delivery Instructions," please deliver New
Capital Securities to the undersigned at the address shown below the
undersigned's signature.
BY TENDERING OLD CAPITAL SECURITIES AND EXECUTING THIS LETTER OF
TRANSMITTAL, THE UNDERSIGNED HEREBY REPRESENTS AND AGREES THAT (I) THE
UNDERSIGNED IS NOT AN "AFFILIATE" OF THE CORPORATION OR THE TRUST, (II) ANY NEW
CAPITAL SECURITIES TO BE RECEIVED BY THE UNDERSIGNED ARE BEING ACQUIRED IN THE
ORDINARY COURSE OF ITS BUSINESS, (III) THE UNDERSIGNED HAS NO ARRANGEMENT OR
UNDERSTANDING WITH ANY PERSON TO PARTICIPATE IN THE DISTRIBUTION (WITHIN THE
MEANING OF THE SECURITIES ACT) OF NEW CAPITAL SECURITIES TO BE RECEIVED IN THE
EXCHANGE OFFER, AND (IV) IF THE UNDERSIGNED IS NOT A BROKER-DEALER, THE
UNDERSIGNED IS NOT ENGAGED IN, AND DOES NOT INTEND TO ENGAGE IN, A DISTRIBUTION
(WITHIN THE MEANING OF THE SECURITIES ACT) OF SUCH NEW CAPITAL SECURITIES. BY
TENDERING OLD CAPITAL SECURITIES PURSUANT TO THE EXCHANGE OFFER AND EXECUTING
THIS LETTER OF TRANSMITTAL, A HOLDER OF OLD CAPITAL SECURITIES WHICH IS A
BROKER-DEALER REPRESENTS AND AGREES, CONSISTENT WITH CERTAIN INTERPRETIVE
LETTERS ISSUED BY THE STAFF OF THE DIVISION OF CORPORATION FINANCE OF THE
SECURITIES AND EXCHANGE COMMISSION TO THIRD PARTIES, THAT (A) SUCH OLD
CAPITAL SECURITIES HELD BY THE BROKER-DEALER ARE HELD ONLY AS A NOMINEE, OR
(B) SUCH OLD CAPITAL SECURITIES WERE ACQUIRED BY SUCH BROKER-DEALER FOR ITS
OWN ACCOUNT AS A RESULT OF MARKET-MAKING ACTIVITIES OR OTHER TRADING
ACTIVITIES AND IT WILL DELIVER THE PROSPECTUS (AS AMENDED OR SUPPLEMENTED
FROM TIME TO TIME) MEETING THE REQUIREMENTS OF THE SECURITIES ACT IN
CONNECTION WITH ANY RESALE OF SUCH NEW CAPITAL SECURITIES (PROVIDED THAT, BY
SO ACKNOWLEDGING AND BY DELIVERING A PROSPECTUS, SUCH BROKER-DEALER WILL NOT
BE DEEMED TO ADMIT THAT IT IS AN "UNDERWRITER" WITHIN THE MEANING OF THE
SECURITIES ACT).
THE CORPORATION AND THE TRUST HAVE AGREED THAT, SUBJECT TO THE PROVISIONS
OF THE REGISTRATION RIGHTS AGREEMENT, THE PROSPECTUS, AS IT MAY BE AMENDED OR
SUPPLEMENTED FROM TIME TO TIME, MAY BE USED BY A PARTICIPATING BROKER-DEALER (AS
DEFINED BELOW) IN CONNECTION WITH RESALES OF NEW CAPITAL SECURITIES RECEIVED IN
EXCHANGE FOR OLD CAPITAL SECURITIES, WHERE SUCH OLD CAPITAL SECURITIES WERE
ACQUIRED BY SUCH PARTICIPATING BROKER-DEALER FOR ITS OWN ACCOUNT AS A RESULT OF
MARKET-MAKING ACTIVITIES OR OTHER TRADING ACTIVITIES, FOR A PERIOD ENDING 90
DAYS AFTER THE EXPIRATION DATE (SUBJECT TO EXTENSION UNDER CERTAIN LIMITED
CIRCUMSTANCES DESCRIBED IN THE PROSPECTUS) OR, IF EARLIER, WHEN ALL SUCH NEW
CAPITAL SECURITIES HAVE BEEN DISPOSED OF BY SUCH PARTICIPATING BROKER-DEALER. IN
THAT REGARD, EACH BROKER-DEALER WHO ACQUIRED OLD CAPITAL SECURITIES FOR ITS OWN
ACCOUNT AND AS A RESULT OF MARKET-MAKING OR OTHER TRADING ACTIVITIES (A
"PARTICIPATING BROKER-DEALER"), BY TENDERING SUCH OLD CAPITAL SECURITIES AND
EXECUTING THIS LETTER OF TRANSMITTAL, AGREES THAT, UPON RECEIPT OF NOTICE FROM
THE CORPORATION OR THE TRUST OF THE OCCURRENCE OF ANY EVENT OR THE DISCOVERY OF
ANY FACT WHICH MAKES ANY STATEMENT CONTAINED OR INCORPORATED BY REFERENCE
THEREIN, IN LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY WERE MADE, NOT
MISLEADING OR OF THE OCCURRENCE OF CERTAIN OTHER EVENTS SPECIFIED IN THE
REGISTRATION RIGHTS AGREEMENT, SUCH PARTICIPATING BROKER-DEALER WILL SUSPEND THE
SALE OF NEW CAPITAL SECURITIES PURSUANT TO THE PROSPECTUS UNTIL THE CORPORATION
AND THE TRUST HAVE AMENDED OR SUPPLEMENTED THE PROSPECTUS TO CORRECT SUCH
MISSTATEMENT OR OMISSION AND HAS FURNISHED COPIES OF THE AMENDED OR SUPPLEMENTED
PROSPECTUS TO THE PARTICIPATING BROKER-DEALER OR THE CORPORATION OR THE TRUST
HAS GIVEN NOTICE THAT THE SALE OF THE NEW CAPITAL SECURITIES MAY BE RESUMED, AS
THE CASE MAY BE. IF THE CORPORATION OR THE TRUST GIVES SUCH NOTICE TO SUSPEND
THE SALE OF THE NEW CAPITAL SECURITIES, IT SHALL EXTEND THE 90-DAY PERIOD
REFERRED TO ABOVE DURING WHICH PARTICIPATING BROKER-DEALERS ARE ENTITLED TO USE
THE PROSPECTUS IN CONNECTION WITH THE RESALE OF NEW CAPITAL SECURITIES BY THE
NUMBER OF DAYS DURING THE PERIOD FROM AND INCLUDING THE DATE OF THE GIVING OF
SUCH NOTICE TO AND INCLUDING THE DATE WHEN PARTICIPATING BROKER-DEALERS SHALL
HAVE RECEIVED COPIES OF THE SUPPLEMENTED OR AMENDED PROSPECTUS NECESSARY TO
PERMIT RESALES OF THE NEW CAPITAL SECURITIES OR TO AND INCLUDING THE DATE ON
WHICH THE CORPORATION OR THE TRUST HAS GIVEN NOTICE THAT THE SALE OF NEW CAPITAL
SECURITIES MAY BE RESUMED, AS THE CASE MAY BE.
As a result, a Participating Broker-Dealer who intends to use the
Prospectus in connection with resales of New Capital Securities received in
exchange for Old Capital Securities pursuant to the Exchange Offer must notify
the Corporation and the Trust, or cause the Corporation and the Trust to be
notified, on or prior to the Expiration
5
<PAGE>
Date, that it is a Participating Broker-Dealer. Such notice may be given in the
space provided above or may be delivered to the Exchange Agent at the address
set forth in the Prospectus under "The Exchange Offer--Exchange Agent."
Holders of Old Capital Securities whose Old Capital Securities are accepted
for exchange will not receive Distributions on such Old Capital Securities and
the undersigned waives the right to receive any Distribution on such Old Capital
Securities accumulated from and after DECEMBER 8, 1997. Accordingly, holders of
New Capital Securities as of the record date for the payment of Distributions on
June 1, 1998 will be entitled to Distributions accumulated from and after
DECEMBER 8, 1997.
All authority herein conferred or agreed to be conferred in this Letter of
Transmittal shall survive the death or incapacity of the undersigned and any
obligation of the undersigned hereunder shall be binding upon the heirs,
executors, administrators, personal representatives, trustees in bankruptcy,
legal representatives, successors and assigns of the undersigned. Except as
stated in the Prospectus, this tender is irrevocable.
6
<PAGE>
- --------------------------------------------------------------------------------
HOLDER(S) SIGN HERE
(See Instructions 2, 5 and 6)
(Please Complete Substitute Form W-9 Below)
(Note: Signature(s) must be guaranteed if required by Instruction 2)
Must be signed by registered holder(s) exactly as name(s) appear(s) on
Certificates(s) for the Old Capital Securities hereby tendered or on a
security position listing, or by any person(s) authorized to become the
registered holder(s) by endorsements and documents transmitted herewith
(including such opinions of counsel, certificates and other information as
may be required by the Trust or the Trustee for the Old Capital Securities to
comply with the restrictions on transfer applicable to the Old Capital
Securities). If signature is by an attorney-in-fact, executor, administrator,
trustee, guardian, officer of a corporation or another acting in a fiduciary
capacity or representative capacity, please set forth the signer's full title.
See Instruction 5.
________________________________________________________________________________
________________________________________________________________________________
(SIGNATURE(S) OF HOLDER(S))
Date___________________, 1997
Name(s)_________________________________________________________________________
(PLEASE PRINT)
________________________________________________________________________________
Area Code(s) and Telephone Number_______________________________________________
________________________________________________________________________________
(TAX IDENTIFICATION OR SOCIAL SECURITY NUMBER(S))
GUARANTEE OF SIGNATURE(S)
(See Instructions 2 and 5)
Authorized Signature____________________________________________________________
Name____________________________________________________________________________
(PLEASE PRINT)
Date___________________, 1997
Capacity or Title_______________________________________________________________
Name of Firm____________________________________________________________________
Address_________________________________________________________________________
(INCLUDE ZIP CODE)
Area Code and Telephone Number__________________________________________________
- --------------------------------------------------------------------------------
7
<PAGE>
- --------------------------------------------------------------------------------
SPECIAL ISSUANCE INSTRUCTIONS
(See Instructions 1, 5 and 6)
To be completed ONLY if New Capital Securities are to be issued in the name of
someone other than the registered holder of the Old Capital Securities whose
name(s) appear(s) above.
Issue:
[_] New Capital Securities to:
[_] Old Capital Securities not tendered to:
Name____________________________________________________________________________
(PLEASE PRINT)
Address_________________________________________________________________________
________________________________________________________________________________
(INCLUDE ZIP CODE)
________________________________________________________________________________
(TAXPAYER IDENTIFICATION OR SOCIAL SECURITY NO.)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SPECIAL DELIVERY INSTRUCTIONS
(See Instructions 1, 5 and 6)
To be completed ONLY if New Capital Securities are to be sent to someone other
than the registered holder of the Old Capital Securities whose name(s) appear(s)
above, or to the registered holder(s) at an address other than that shown above.
Mail:
[_] New Capital Securities to:
[_] Old Capital Securities not tendered to:
Name____________________________________________________________________________
(PLEASE PRINT)
Address_________________________________________________________________________
________________________________________________________________________________
(INCLUDE ZIP CODE)
________________________________________________________________________________
(TAXPAYER IDENTIFICATION OR SOCIAL SECURITY NO.)
- --------------------------------------------------------------------------------
8
<PAGE>
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER
1. DELIVERY OF LETTER OF TRANSMITTAL AND CERTIFICATES; GUARANTEED DELIVERY
PROCEDURES. This Letter of Transmittal is to be completed either if (a) tenders
are to be made pursuant to the procedures for tender by book-entry transfer set
forth in "The Exchange Offer--Procedures for Tendering Old Capital Securities"
in the Prospectus unless an Agent's message is transmitted in lieu hereof or (b)
Certificates are to be forwarded herewith. Timely confirmation of a book-entry
transfer of such Old Capital Securities into the Exchange Agent's account at
DTC, or Certificates as well as this Letter of Transmittal (or facsimile
thereof), properly completed and duly executed, with any required signature
guarantees or an Agent's message in lieu hereof, and any other documents
required by this Letter of Transmittal, must be received by the Exchange Agent
at its addresses set forth herein on or prior to the Expiration Date. Old
Capital Securities may be tendered in whole or in part in the principal amount
of $100,000 (100 Capital Securities) and integral multiples of $1,000 in excess
thereof, provided that, if any Old Capital Securities are tendered for exchange
in part, the untendered principal amount thereof must be $100,000 (100 Capital
Securities) or any integral multiple of $1,000 in excess thereof.
Holders who wish to tender their Old Capital Securities and (i) who cannot
complete the procedures for delivery by book-entry transfer on a timely basis,
may tender their Old Capital Securities by properly completing and duly
executing a Notice of Guaranteed Delivery pursuant to the guaranteed delivery
procedures set forth in "The Exchange Offer--Procedures for Tendering Old
Capital Securities" in the Prospectus or (ii who cannot deliver their Old
Capital Securities, this Letter of Transmittal and all other required documents
to the Exchange Agent on or prior to the Expiration Date or (ii whose Old
Capital Securities are not immediately available must use a Notice of Guaranteed
Delivery and follow the related procedures. Pursuant to such procedures: (a)
such tender must be made by or through an Eligible Institution (as defined
below); (b) a properly completed and duly executed Notice of Guaranteed
Delivery, substantially in the form made available by the Company, must be
received by the Exchange Agent on or prior to the Expiration Date; and (c) the
Certificates (or a book-entry confirmation (as defined in the Prospectus))
representing tendered Old Capital Securities, in proper form for transfer,
together with a Letter of Transmittal (or facsimile thereof), properly completed
and duly executed, with any required signature guarantees or an Agent's message
in lieu hereof and any other documents required by this Letter of Transmittal,
must be received by the Exchange Agent within five New York Stock Exchange, Inc.
trading days after the date of execution of such Notice of Guaranteed Delivery,
all as provided in "The Exchange Offer--Procedures for Tendering Old Capital
Securities" in the Prospectus.
The Notice of Guaranteed Delivery may be delivered by hand or transmitted
by facsimile or mail to the Exchange Agent, and must include a guarantee by an
Eligible Institution in the form set forth in such Notice. For Old Capital
Securities to be properly tendered pursuant to the guaranteed delivery
procedure, the Exchange Agent must receive a Notice of Guaranteed Delivery on or
prior to the Expiration Date. As used herein and in the Prospectus, "Eligible
Institution" means a firm or other entity identified in Rule 17Ad-15 under the
Exchange Act as "an eligible guarantor institution," including (as such terms
are defined therein) (i) a bank; (ii) a broker, dealer, municipal securities
broker or dealer or government securities broker or dealer; (iii) a credit
union; (iv) a national securities exchange, registered securities association or
clearing agency; or (v) a savings association that is a participant in a
Securities Transfer Association.
THE METHOD OF DELIVERY OF CERTIFICATES, THIS LETTER OF TRANSMITTAL AND ALL OTHER
REQUIRED DOCUMENTS IS AT THE OPTION AND SOLE RISK OF THE TENDERING HOLDER AND
THE DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED BY THE EXCHANGE
AGENT. IF DELIVERY IS BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT REQUESTED,
PROPERLY INSURED, OR OVERNIGHT DELIVERY SERVICE IS RECOMMENDED. IN ALL CASES,
SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY.
Neither the Corporation nor the Trust will accept any alternative,
conditional or contingent tenders. Each tendering holder, by execution of a
Letter of Transmittal (or facsimile thereof), waives any right to receive any
notice of the acceptance of such tender.
2. GUARANTEE OF SIGNATURES. No signature guarantee on this Letter of
Transmittal is required if:
9
<PAGE>
(i) this Letter of Transmittal is signed by the registered holder (which
term, for purposes of this document, shall include any participant in DTC whose
name appears on a security position listing as the owner of the Old Capital
Securities) of Old Capital Securities tendered herewith, unless such holder(s)
has completed either the box entitled "Special Issuance Instructions" or the box
entitled "Special Delivery Instructions" above, or
(ii) such Old Capital Securities are tendered for the account of a firm
that is an Eligible Institution.
In all other cases, an Eligible Institution must guarantee the signature(s)
on this Letter of Transmittal. See Instruction 5.
3. INADEQUATE SPACE. If the space provided in the box captioned
"Description of Old Capital Securities" is inadequate, the Certificate number(s)
and/or the principal amount of Old Capital Securities and any other required
information should be listed on a separate signed schedule which is attached to
this Letter of Transmittal.
4. PARTIAL TENDERS AND WITHDRAWAL RIGHTS. Tenders of Old Capital
Securities will be accepted only in the principal amount of $100,000 (100
Capital Securities) and integral multiples of $1,000 in excess thereof, provided
that if any Old Capital Securities are tendered for exchange in part, the
untendered principal amount thereof must be $100,000 (100 Capital securities) or
any integral multiple of $1,000 in excess thereof. If less than all the Old
Capital Securities evidenced by any Certificate submitted are to be tendered,
fill in the principal amount of Old Capital Securities which are to be tendered
in the box entitled "Principal Amount of Old Capital Securities Tendered." In
such case, new Certificate(s) for the remainder of the Old Capital Securities
that were evidenced by your Old Certificate(s) will only be sent to the holder
of the Old Capital Security, promptly after the Expiration Date. All Old Capital
Securities represented by Certificates delivered to the Exchange Agent will be
deemed to have been tendered unless otherwise indicated.
Except as otherwise provided herein, tenders of Old Capital Securities may
be withdrawn at any time on or prior to the Expiration Date. In order for a
withdrawal to be effective on or prior to that time, a written, telegraphic,
telex or facsimile transmission of such notice of withdrawal must be timely
received by the Exchange Agent at one of its addresses set forth above or in the
Prospectus on or prior to the Expiration Date. Any such notice of withdrawal
must specify the name of the person who tendered the Old Capital Securities to
be withdrawn, the aggregate principal amount of Old Capital Securities to be
withdrawn, and (if Certificates for Old Capital Securities have been tendered)
the name of the registered holder of the Old Capital Securities as set forth on
the Certificate for the Old Capital Securities, if different from that of the
person who tendered such Old Capital Securities. If Certificates for the Old
Capital Securities have been delivered or otherwise identified to the Exchange
Agent, then prior to the physical release of such Certificates for the Old
Capital Securities, the tendering holder must submit the serial numbers shown on
the particular Certificates for the Old Capital Securities to be withdrawn and
the signature on the notice of withdrawal must be guaranteed by an Eligible
Institution, except in the case of Old Capital Securities tendered for the
account of an Eligible Institution. If Old Capital Securities have been tendered
pursuant to the procedures for book-entry transfer set forth in "The Exchange
Offer--Procedures for Tendering Old Capital Securities," the notice of
withdrawal must specify the name and number of the account at DTC to be credited
with the withdrawal of Old Capital Securities, in which case a notice of
withdrawal will be effective if delivered to the Exchange Agent by written,
telegraphic, telex or facsimile transmission. Withdrawals of tenders of Old
Capital Securities may not be rescinded. Old Capital Securities properly
withdrawn will not be deemed validly tendered for purposes of the Exchange
Offer, but may be retendered at any subsequent time on or prior to the
Expiration Date by following any of the procedures described in the Prospectus
under "The Exchange Offer--Procedures for Tendering Old Capital Securities."
All questions as to the validity, form and eligibility (including time of
receipt) of such withdrawal notices will be determined by the Corporation and
the Trust, in their sole discretion, whose determination shall be final and
binding on all parties. Neither the Corporation, the Trust, any affiliates or
assigns of the Corporation and the Trust, the Exchange Agent nor any other
person shall be under any duty to give any notification of any irregularities in
any notice of withdrawal or incur any liability for failure to give any such
notification. Any Old Capital Securities which have been tendered but which are
withdrawn will be returned to the holder thereof without cost to such holder
promptly after withdrawal.
5. SIGNATURES ON LETTER OF TRANSMITTAL, ASSIGNMENTS AND ENDORSEMENTS. If
this Letter of Transmittal is signed by the registered holder(s) of the Old
Capital Securities tendered hereby, the signature(s) must correspond exactly
with the name(s) as written on the face of the Certificate(s) without
alteration, enlargement or any change whatsoever.
10
<PAGE>
If any of the Old Capital Securities tendered hereby are owned of record by
two or more joint owners, all such owners must sign this Letter of Transmittal.
If any tendered Old Capital Securities are registered in different name(s)
on several Certificates, it will be necessary to complete, sign and submit as
many separate Letters of Transmittal (or facsimiles thereof) as there are
different registrations of Certificates.
If this Letter of Transmittal or any Certificates or bond powers are signed
by trustees, executors, administrators, guardians, attorneys-in-fact, officers
of corporations or others acting in a fiduciary or representative capacity, such
persons should so indicate when signing and must submit proper evidence
satisfactory to the Corporation and the Trust, in their sole discretion, of such
persons' authority to so act.
When this Letter of Transmittal is signed by the registered owner(s) of the
Old Capital Securities listed and transmitted hereby, no endorsement(s) of
Certificate(s) or separate bond power(s) are required unless New Capital
Securities are to be issued in the name of a person other than the registered
holder(s). Signature(s) on such Certificate(s) or bond power(s) must be
guaranteed by an Eligible Institution.
If this Letter of Transmittal is signed by a person other than the
registered owner(s) of the Old Capital Securities listed, the Certificates must
be endorsed or accompanied by appropriate bond powers, signed exactly as the
name or names of the registered owner(s) appear(s) on the Certificates, and also
must be accompanied by such opinions of counsel, certifications and other
information as the Corporation, the Trust or the Trustee for the Old Capital
Securities may require in accordance with the restrictions on transfer
applicable to the Old Capital Securities. Signatures on such Certificates or
bond powers must be guaranteed by an Eligible Institution.
6. SPECIAL ISSUANCE AND DELIVERY INSTRUCTIONS. If New Capital Securities
are to be issued in the name of a person other than the signer of this Letter of
Transmittal, or if New Capital Securities are to be sent to someone other than
the signer of this Letter of Transmittal or to an address other than that shown
above, the appropriate boxes on this Letter of Transmittal should be completed.
Certificates for Old Capital Securities not exchanged will be returned by mail
or, if tendered by book-entry transfer, by crediting the account indicated above
maintained at DTC. See Instruction 4.
7. IRREGULARITIES. The Corporation and the Trust will determine, in their
sole discretion, all questions as to the form of documents, validity,
eligibility (including time of receipt) and acceptance for exchange of any
tender of Old Capital Securities which determination shall be final and binding
on all parties. The Corporation and the Trust reserve the absolute right, in
their sole and absolute discretion, to reject any and all tenders determined by
either of them not to be in proper form or the acceptance of which, or exchange
for, may, in the view of counsel to the Corporation and the Trust, be unlawful.
The Corporation and the Trust also reserve the absolute right, subject to
applicable law, to waive any of the conditions of the Exchange Offer set forth
in the Prospectus under "The Exchange Offer--Conditions to the Exchange Offer"
or any conditions or irregularity in any tender of Old Capital Securities of any
particular holder whether or not similar conditions or irregularities are waived
in the case of other holders. The Corporation's and the Trust's interpretation
of the terms and conditions of the Exchange Offer (including this Letter of
Transmittal and the instructions hereto) will be final and binding. No tender of
Old Capital Securities will be deemed to have been validly made until all
irregularities with respect to such tender have been cured or waived. Neither
the Corporation, the Trust, any affiliates or assigns of the Corporation, the
Trust, the Exchange Agent, or any other person shall be under any duty to give
notification of any irregularities in tenders or incur any liability for failure
to give such notification.
8. QUESTIONS, REQUESTS FOR ASSISTANCE AND ADDITIONAL COPIES. Questions
and requests for assistance may be directed to the Exchange Agent at its address
and telephone number set forth on the front of this Letter of Transmittal.
Additional copies of the Prospectus, this Letter of Transmittal and the Notice
of Guaranteed Delivery may be obtained from the Exchange Agent or from your
broker, dealer, commercial bank, trust company or other nominee.
9. 31% BACKUP WITHHOLDING; SUBSTITUTE FORM W-9. Under U.S. Federal income
tax law, a holder whose tendered Old Capital Securities are accepted for
exchange is required to provide the Exchange Agent with such holder's correct
taxpayer identification number ("TIN") on Substitute Form W-9 below. If the
Exchange Agent is not provided with the correct TIN, the Internal Revenue
Service (the "IRS") may subject the holder or other payee to a $50 penalty. In
11
<PAGE>
addition, payments to such holders or other payees with respect to Old Capital
Securities exchanged pursuant to the Exchange Offer may be subject to 31% backup
withholding.
The box in Part 2 of the Substitute Form W-9 may be checked if the
tendering holder has not been issued a TIN and has applied for a TIN or intends
to apply for a TIN in the near future. If the box in Part 2 is checked, the
holder or other payee must also complete the Certificate of Awaiting Taxpayer
Identification Number below in order to avoid backup withholding.
Notwithstanding that the box in Part 2 is checked and the Certificate of
Awaiting Taxpayer Identification Number is completed, the Exchange Agent will
withhold 31% of all payments made prior to the time a properly certified TIN is
provided to the Exchange Agent. The Exchange Agent will retain such amounts
withheld during the 60 day period following the date of the Substitute Form W-9.
If the holder furnishes the Exchange Agent with its TIN within 60 days after the
date of the Substitute Form W-9, the amounts retained during the 60 day period
will be remitted to the holder and no further amounts shall be retained or
withheld from payments made to the holder thereafter. If, however, the holder
has not provided the Exchange Agent with its TIN within such 60 day period,
amounts withheld will be remitted to the IRS as backup withholding. In addition,
31% of all payments made thereafter will be withheld and remitted to the IRS
until a correct TIN is provided.
The holder is required to give the Exchange Agent the TIN (e.g., social
security number or employer identification number) of the registered owner of
the Old Capital Securities or of the last transferee appearing on the transfers
attached to, or endorsed on, the Old Capital Securities. If the Old Capital
Securities are registered in more than one name or are not in the name of the
actual owner, consult the enclosed "Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9" for additional guidance on which
number to report.
Certain holders (including, among others, corporations, financial
institutions and certain foreign persons) may not be subject to these backup
withholding and reporting requirements. Such holders should nevertheless
complete the attached Substitute Form W-9 below, and write "exempt" on the face
thereof, to avoid possible erroneous backup withholding. A foreign person may
qualify as an exempt recipient by submitting a properly completed IRS Form W-8,
signed under penalties of perjury, attesting to that holder's exempt status.
Please consult the enclosed "Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9" for additional guidance on which
holders are exempt from backup withholding.
Backup withholding is not an additional U.S. Federal income tax. Rather,
the U.S. Federal income tax liability of a person subject to backup withholding
will be reduced by the amount of tax withheld. If withholding results in an
overpayment of taxes, a refund may be obtained.
10. LOST, DESTROYED OR STOLEN CERTIFICATES. If any Certificate(s)
representing Old Capital Securities have been lost, destroyed or stolen, the
holder should promptly notify the Exchange Agent. The holder will then be
instructed as to the steps that must be taken in order to replace the
Certificate(s). This Letter of Transmittal and related documents cannot be
processed until the procedures for replacing lost, destroyed or stolen
Certificate(s) have been followed.
11. SECURITY TRANSFER TAXES. Holders who tender their Old Capital
Securities for exchange will not be obligated to pay any transfer taxes in
connection therewith. If, however, New Capital Securities are to be delivered
to, or are to be issued in the name of, any person other than the registered
holder of the Old Capital Securities tendered, or if a transfer tax is imposed
for any reason other than the exchange of Old Capital Securities in connection
with the Exchange Offer, then the amount of any such transfer tax (whether
imposed on the registered holder or any other persons) will be payable by the
tendering holder. If satisfactory evidence of payment of such taxes or exemption
therefrom is not submitted with the Letter of Transmittal, the amount of such
transfer taxes will be billed directly to such tendering holder.
IMPORTANT: THIS LETTER OF TRANSMITTAL (OR FACSIMILE THEREOF) AND ALL OTHER
REQUIRED DOCUMENTS MUST BE RECEIVED BY THE EXCHANGE AGENT ON OR PRIOR TO THE
EXPIRATION DATE.
12
<PAGE>
TO BE COMPLETED BY ALL
TENDERING SECURITY HOLDERS
(SEE INSTRUCTION 9)
PAYER'S NAME: DOMINION RESOURCES CAPITAL TRUST I
<TABLE>
<CAPTION>
<S> <C> <C>
- -------------------------------------------------------------------------------------------------------------------------
SUBSTITUTE Part 1 - PLEASE PROVIDE YOUR TIN________________________
Form W-9 TIN IN THE BOX AT RIGHT AND Social Security Number or
CERTIFY BY SIGNING AND Employer Identification Number
DATING BELOW
--------------------------------------------------------------------------------------
Department of the Treasury Part 2
Internal Revenue Service Awaiting TIN [_]
----------------------------------------
CERTIFICATION - UNDER THE PENALTIES OF PERJURY, I CERTIFY THAT (1) the number
shown on this form is my correct taxpayer identification number (or I am waiting
for a number to be issued to me), (2) I am not subject to backup withholding either
because (i) I am exempt from backup withholding, (ii) I have not been notified by
the Internal Revenue Service ("IRS") that I am subject to backup withholding as a
result of a failure to report all interest or dividends, or (iii) the IRS has
notified me that I am no longer subject to backup withholding, and (3) any other
information provided on this form is true and correct.
Payer's Request for Taxpayer SIGNATURE_______________________________________________________________
Identification Number (TIN) DATE____________________________________________________________________
and Certification
You must cross out item (iii) in Part (2) above if you have been notified by
the IRS that you are subject to backup withholding because of under
reporting interest or dividends on your tax return and you have not been
notified by the IRS that you are no longer subject to backup withholding.
- -------------------------------------------------------------------------------------------------------------------------
</TABLE>
NOTE: IN BACKUP WITHHOLDING OF 31% OF ANY AMOUNTS PAID TO YOU PURSUANT TO THE
EXCHANGE OFFER. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF
TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL
DETAILS.
- --------------------------------------------------------------------------------
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification
number has not been issued to me, and either (1) I have mailed or delivered
an application to receive a taxpayer identification number to the
appropriate Internal Revenue Service Center or Social Security
Administration Office or (2) I intend to mail or deliver an application in
the near future. I understand that if I do not provide a taxpayer
identification number by the time of payment, 31% of all payments made to
me on account of the New Capital Securities shall be retained until I
provide a taxpayer identification number to the Exchange Agent and that, if
I do not provide my taxpayer identification number within 60 days, such
retained amounts shall be remitted to the Internal Revenue Service as
backup withholding and 31% of all reportable payments made to me thereafter
will be withheld and remitted to the Internal Revenue Service until I
provide a taxpayer identification number.
Signature_________________________ Date_________________________________
_______________________________________________________________________________
_______________________________________________________________________________
13
<PAGE>
EXHIBIT 99.2
NOTICE OF GUARANTEED DELIVERY
FOR TENDER OF
ANY AND ALL OUTSTANDING
7.83% CAPITAL SECURITIES
(LIQUIDATION AMOUNT $1,000 PER CAPITAL SECURITY)
OF
DOMINION RESOURCES CAPITAL TRUST I
FULLY AND UNCONDITIONALLY GUARANTEED
BY DOMINION RESOURCES, INC.
This Notice of Guaranteed Delivery, or one substantially equivalent to this
form, must be used to accept the Exchange Offer (as defined below) if (i)
certificates for the Trust's (as defined below) 7.83% Capital Securities (the
"Old Capital Securities") are not immediately available, (ii) Old Capital
Securities, the Letter of Transmittal and all other required documents cannot be
delivered to The Chase Manhattan Bank (the "Exchange Agent") on or prior to 5:00
P.M. New York time, on the Expiration Date (as defined in the Prospectus
referred to below) or (iii) the procedures for delivery by book-entry transfer
cannot be completed on a timely basis. This Notice of Guaranteed Delivery may
be delivered by hand, overnight courier or mail, or transmitted by facsimile
transmission, to the Exchange Agent. See "The Exchange Offer -- Procedures for
Tendering Old Capital Securities" in the Prospectus. In addition, in order to
utilize the guaranteed delivery procedure to tender Old Capital Securities
pursuant to the Exchange Offer, a completed, signed and dated Letter of
Transmittal relating to the Old Capital Securities (or facsimile thereof) or an
Agent's message in lien thereof must also be received by the Exchange Agent
prior to 5:00 P.M. New York time on the Expiration Date. Capitalized terms not
defined herein have the meanings assigned to them in the Prospectus.
The Exchange Agent For The Exchange Offer Is:
The Chase Manhattan Bank
By Registered or Certified Mail By Overnight Courier or Hand
The Chase Manhattan Bank The Chase Manhattan Bank
55 Water Street 55 Water Street
Room 234, North Building Room 234, North Building
New York, New York 10041 New York, New York 10041
Attn: Carlos Esteves Attn: Carlos Esteves
To Confirm by Telephone: By Facsimile Transmission:
(212) 638-0828 (212) 638-7380 or 7381
Delivery of this Notice of Guaranteed Delivery to an address other than as
set forth above or transmission of this Notice of Guaranteed Delivery via
facsimile to a number other than as set forth above will not constitute a valid
delivery.
<PAGE>
THIS NOTICE OF GUARANTEED DELIVERY IS NOT TO BE USED TO GUARANTEE
SIGNATURES. IF A SIGNATURE ON A LETTER OF TRANSMITTAL IS REQUIRED TO BE
GUARANTEED BY AN "ELIGIBLE INSTITUTION" UNDER THE INSTRUCTIONS THERETO, SUCH
SIGNATURE GUARANTEE MUST APPEAR IN THE APPLICABLE SPACE PROVIDED IN THE
SIGNATURE BOX ON THE LETTER OF TRANSMITTAL.
Ladies and Gentlemen:
The undersigned hereby tenders to Dominion Resources, Inc., a Virginia
corporation (the "Corporation") and to Dominion Resources Capital Trust I, a
Delaware business trust (the "Trust"), upon the terms and subject to the
conditions set forth in the Prospectus dated May __, 1998 (as the same may be
amended or supplemented from time to time, the "Prospectus"), and the related
Letter of Transmittal (which together constitute the "Exchange Offer"), receipt
of which is hereby acknowledged, the aggregate principal amount of Old Capital
Securities set forth below pursuant to the guaranteed delivery procedures set
forth in the Prospectus under the caption "The Exchange Offer -- Procedures for
Tendering Old Capital Securities."
Aggregate Liquidation Amount * Name(s) of Registered Holder(s):
Amount Tendered:
$_______________________________ ____________________________________
Certificate No(s). ____________________________________
if available: __________________
____________________________________
Total Liquidation Amount Represented by
Old Capital Securities Certificate(s):
$_______________________________
If Old Capital Securities will be tendered by book-entry transfer, provide the
following information:
DTC Account Number: ____________
Date:___________________________
*Must be in denominations of a Liquidation Amount of $1,000 and any
integral multiple thereof, and not less than $100,000 aggregate Liquidation
Amount.
2
<PAGE>
______________________________________________________________________________
All authority herein conferred or agreed to be conferred shall survive the
death or incapacity of the undersigned and every obligation of the undersigned
hereunder shall be binding upon the heirs, personal representatives, successors
and assigns of the undersigned.
______________________________________________________________________________
PLEASE SIGN HERE
X __________________________________ ____________________________________
X __________________________________ ____________________________________
Signature(s) of Owner(s) or Date
Authorized Signatory
Area Code and Telephone Number: _________________________
Must be signed by the holder(s) of the Old Capital Securities as their
name(s) appear(s) on certificates for Old Capital Securities or on a security
position listing, or by person(s) authorized to become registered holder(s) by
endorsement and documents transmitted with this Notice of Guaranteed Delivery.
If signature is by a trustee, executor, administrator, guardian, attorney-in-
fact, officer or other person acting in a fiduciary or representative capacity,
such person must set forth his or her full title below.
Please print name(s) and address(es)
Name(s): ____________________________________________________________
____________________________________________________________
____________________________________________________________
Capacity: ____________________________________________________________
Address(es): ____________________________________________________________
____________________________________________________________
____________________________________________________________
3
<PAGE>
THE GUARANTEE ON THE REVERSE SIDE MUST BE COMPLETED
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, a firm or other entity identified in Rule 17Ad-15 under
the Securities Exchange Act of 1934, as amended, as an "eligible guarantor
institution", including (as such terms are defined therein): (i) a bank; (ii) a
broker, dealer, municipal securities broker, municipal securities dealer,
government securities broker, government securities dealer; (iii) a credit
union; (iv) a national securities exchange, registered securities association or
clearing agency; or (v) a savings association that is a participant in a
Securities Transfer Association recognized program (each of the foregoing being
referred to as an "Eligible Institution"), hereby guarantees to deliver to the
Exchange Agent, at one of its addresses set forth above, either the Old Capital
Securities tendered hereby in proper form for transfer, or confirmation of the
book-entry transfer of such Old Capital Securities to the Exchange Agent's
account at The Depository Trust Company ("DTC"), pursuant to the procedures for
book-entry transfer set forth in the Prospectus, in either case together with
one or more properly completed and duly executed Letter(s) of Transmittal (or
facsimile thereof) or an Agent's message in lien thereof and any other required
documents within five business days after the date of execution of this Notice
of Guaranteed Delivery.
The undersigned acknowledges that it must deliver the Letter(s) of
Transmittal or an Agent's message in lien thereof and the Old Capital Securities
tendered hereby to the Exchange Agent within the time period set forth above and
that failure to do so could result in a financial loss to the undersigned.
__________________________________ __________________________________
Name of Firm Authorized Signature
__________________________________ __________________________________
Address Title
__________________________________ __________________________________
Zip Code (Please Type or Print)
Area code and Telephone No._______ Dated: ___________________________
NOTE: DO NOT SEND CERTIFICATES FOR OLD CAPITAL SECURITIES WITH THIS FORM.
CERTIFICATES FOR OLD CAPITAL SECURITIES SHOULD ONLY BE SENT WITH YOUR LETTER OF
TRANSMITTAL.
4
<PAGE>
EXHIBIT 99.3
DOMINION RESOURCES CAPITAL TRUST I
OFFER TO EXCHANGE
Its
7.83% Capital Securities
Which Have Been Registered Under the Securities Act of 1933
for Any and All of Its Outstanding
7.83% Capital Securities
(Liquidation Amount $1,000 per Capital Security)
To Our Clients:
Enclosed for your consideration are the Prospectus, dated ____________,
1998 (as the same may be amended and supplemented from time to time, the
("Prospectus"), and the related Letter of Transmittal (which together with the
Prospectus constitute the "Exchange Offer"), in connection with the offer by
Dominion Resources Capital Trust I, a Delaware statutory business trust (the
"Trust"), to exchange the Trust's 7.83% Capital Securities due December 1, 2027
( the "New Capital Securities") which have been registered under the Securities
Act of 1933, as amended (the "Securities Act"), for any and all of the Trust's
outstanding 7.83% Capital Securities due December 1, 2027 (the "Old Capital
Securities"), upon the terms and subject to the conditions set forth in the
Exchange Offer.
The Exchange Offer will expire at 5:00 p.m., New York City time, on
_______________, 1998, unless extended (the "Expiration Date").
We are holding Old Capital Securities for your account. An exchange of the
Old Capital Securities can be made only by us and pursuant to your instructions.
The Letter of Transmittal is furnished to you for your information only and
cannot be used by you to exchange the Old Capital Securities held by us for your
account. The Exchange Offer provides a procedure for holders to tender by means
of guaranteed delivery.
We request information as to whether you wish us to exchange any or all of
the Old Capital Securities held by us for your account upon the terms and
subject to the conditions of the Exchange Offer.
Your attention is directed to the following:
1. The forms and terms of the New Capital Securities are the same in
all material respects as the forms and terms of the Old Capital Securities
(which they replace) except that the New Capital Securities have been
registered under the Securities Act. Distributions on the New Capital
Securities will accumulate from the most recent December 1 or June 1 on
which distributions were paid or provided for on the Old Capital
Securities, or, if no distributions have been paid or provided for on the
Old Capital Securities, from December 8, 1997.
<PAGE>
2. Based on an interpretation by the staff of the Division of Corporation
Finance of the Securities and Exchange Commission (the "SEC") as set forth
in certain interpretive letters addressed to third parties in other
transactions, Dominion Resources, Inc., a Virginia corporation ("the
Company"), and the Trust believe that a holder of Old Capital Securities
(other than a holder who is (a) a broker-dealer who purchased the Old
Capital Securities directly from the Trust to resell pursuant to Rule 144A
under the Securities Act or any other available exemption under the
Securities Act, (b) a person participating in the distribution of the Old
Capital Securities or (c) a person who is an "affiliate" of the Company or
the Trust) who exchanges Old Capital Securities in the Exchange Offer for
New Capital Securities and then resells such New Capital Securities will be
viewed by the staff no differently than a non-affiliated purchaser of
registered securities who purchases such securities in a registered primary
offering of securities and, after completion of such registered offering,
may resell the New Capital Securities without further compliance with the
registration and prospectus delivery provisions of the Securities Act,
provided that such New Capital Securities are acquired in the ordinary
course of such holder's business and that such holder is not participating,
and has no arrangement or understanding with any person to participate, in
a distribution (within the meaning of Securities Act) of such New Capital
Securities. See "Brown & Wood LLP,") SEC No-Action Letter (available
February 7, 1997), "Shearman & Sterling," SEC No-Action Letter (available
July 2, 1993), "Morgan Stanley & Co., Inc.," SEC No-Action Letter
(available June 5, 1991) and "Exxon Capital Holdings Corporation," SEC No-
Action Letter (available May 13, 1988).
3. The Exchange Offer is not conditioned on any minimum aggregate
liquidation amount of Old Capital Securities being tendered except that Old
Capital Securities may be tendered only in an aggregate liquidation amount
of $100,000 (100 Old Capital Securities) and integral multiples of $1,000
(1 Old Capital Security) in excess thereof. The New Capital Securities will
be exchanged for the Old Capital Securities at the rate of one New Capital
Security ($1,000 liquidation amount) for each Old Capital Security ($1,000
liquidation amount).
4. Notwithstanding any other provisions of the Exchange Offer, or any
extension of the Exchange Offer, Dominion Resources, Inc. ("the Company"),
and the Trust will not be required to accept any Old Capital Securities for
exchange or to exchange any New Capital Securities for any Old Capital
Securities and may terminate the Exchange Offer (whether or not any Old
Capital Securities have been accepted for exchange) or may waive any
conditions to or amend the Exchange Offer, if any of the conditions
described in the Prospectus under "The Exchange Offer - Conditions of the
Exchange Offer" have occurred or exist or have not been satisfied.
5. Tendered Old Capital Securities may be withdrawn at any time prior to
5:00 p.m., New York City time, on the Expiration Date, if such Old Capital
Securities have not previously been accepted for exchange pursuant to the
Exchange Offer.
2
<PAGE>
6. Any transfer taxes applicable to the exchange of Old Capital
Securities pursuant to the Exchange Offer will be paid by the Company,
except as otherwise provided in Instruction 11 of the Letter of
Transmittal.
If you wish to have us tender any or all of your Old Capital Securities,
please so instruct us by completing, detaching and returning to us the
instruction form attached hereto. An envelope to return your instructions is
enclosed. If you authorize a tender of your Old Capital Securities, the entire
liquidation amount of Old Capital Securities held for your account will be
tendered unless otherwise specified on the instruction form. Your instructions
should be forwarded to us in ample time to permit us to submit a tender on your
behalf by the Expiration Date.
The Exchange Offer is not being made to, nor will tenders be accepted from
or on behalf of, holders of the Old Capital Securities in any jurisdiction in
which the making of the Exchange Offer or acceptance thereof would not be in
compliance with the laws of such jurisdiction or would otherwise not be in
compliance with any provision of any applicable security law.
3
<PAGE>
DOMINION RESOURCES CAPITAL TRUST I
OFFER TO EXCHANGE
Its
7.83% Capital Securities
Which Have Been Registered Under the Securities Act of 1933
for Any and All of Its Outstanding
7.83% Capital Securities
(Liquidation Amount $1,000 per Capital Security)
Instructions to Registered Holder from Beneficial Owner
The undersigned acknowledge(s) receipt of your letter and the enclosed
Prospectus and the related Letter of Transmittal in connection with the offer by
the Trust to exchange New Capital Securities for Old Capital Securities.
This will instruct you to tender the liquidation amount of Old Capital
Securities indicated below held by you for the account of the undersigned, upon
the terms and subject to the conditions set forth in the Prospectus and the
related Letter of Transmittal.
The undersigned represents that (i) it is not an "affiliate" of the Company
or the Trust, (ii) any New Capital Securities to be received by the undersigned
are being acquired in the ordinary course of the undersigned's business, (iii)
the undersigned has no arrangement or understanding with any person to
participate in a distribution (within the meaning of the Securities Act) of such
New Capital Securities, and (iv) the undersigned is not engaged in, and does not
intend to engage in, a distribution (within the meaning of the Securities Act)
of such New Capital Securities.
A broker-dealer who holds Old Capital Securities for its own account as a
result of market-making activities or other trading activities and who receives
New Capital Securities in exchange for such Old Capital Securities pursuant to
the Exchange Offer may be deemed to be an "underwriter" within the meaning of
the Securities Act and will be required to deliver a prospectus meeting the
requirements of the Securities Act in connection with any resale of such New
Capital Securities. If the undersigned is a broker-dealer which acquired any of
the Tendered Old Capital Securities for its own account as the result of market-
making activities or other trading activities (a "Participating Broker-Dealer"),
such broker-dealer acknowledges that it will deliver a prospectus meeting the
requirements of the Securities Act in connection with any resale of New Capital
Securities received in exchange for any of such Tendered Old Capital Securities
that were acquired for its own account as the result of market-making activities
or other trading activities. Notwithstanding the foregoing, the undersigned does
not thereby admit that it is an "underwriter" within the meaning of the
Securities Act.
4
<PAGE>
The undersigned understands that the Company and the Trust have agreed
that, subject to the provisions of the Registration Rights Agreement (as defined
in the Prospectus) and to the limitations described under "The Exchange Offer -
Resales of New Capital Securities" in the Prospectus, the Prospectus, as it may
be amended or supplemented from time to time, may be used by a Participating
Broker-Dealer in connection with resales of New Capital Securities received in
exchange for Old Capital Securities that were acquired by such Participating
Broker-Dealer for its own account as a result of market-making activities or
other trading activities, for a period ending 90 days after the Expiration Date
or, if earlier, when all such New Capital Securities have been disposed of by
such Participating Broker-Dealer. If the undersigned is a Participating Broker-
Dealer, the undersigned agrees that, upon receipt of notice from the Company or
the Trust of the occurrence of any event or the discovery of any fact which
makes any statement contained or incorporated by reference in the Prospectus
untrue in any material respect or which causes the Prospectus to omit to state a
material fact necessary in order to make the statements contained or
incorporated by reference therein, in light of the circumstances under which
they were made, not misleading or of the occurrence of certain other events
specified in the registration rights agreement, such Participating Broker-Dealer
will suspend the sale of New Capital Securities pursuant to the Prospectus until
the Company or the Trust has amended or supplemented the Prospectus to correct
such misstatement or omission and has furnished copies of the amended or
supplemented Prospectus to such Participating Broker-Dealer or the Company or
the Trust has given notice that the sale of the New Capital Securities may be
resumed, as the case may be.
Sign Here:
____________________________________
Signature(s)
Securities which are to be tendered:
Tender all of the Old Capital Securities
Aggregate Liquidation Amount/1/_____________________
[_] Old Capital Securities__________________________
____________________________________
Name(s) (Please Print)
____________________________
/1/ Unless otherwise indicated, it will be assumed that all of the Old Capital
Securities listed are to be tendered.
5
<PAGE>
____________________________________
Address
____________________________________
City, State and Zip Code
____________________________________
Area Code and Telephone No.
Dated: ______________, 1998
6
<PAGE>
EXHIBIT 99.4
DOMINION RESOURCES CAPITAL TRUST I
OFFER TO EXCHANGE
Its
7.83% Capital Securities
Which Have Been Registered Under the Securities Act of 1933
for Any and All of Its Outstanding
7.83% Capital Securities
(Liquidation Amount $1,000 per Capital Security)
____________, 1998
To Brokers, Dealers, Commercial
Banks, Trust Companies and
Other Nominees:
We are enclosing herewith an offer by Dominion Resources Capital Trust I, a
Delaware statutory business trust (the "Trust"), to exchange the Trust's new
7.83% Capital Securities due December 1, 2027 (the "New Capital Securities")
which have been registered under the Securities Act of 1933, as amended (the
"Securities Act"), for any and all of the Trust's outstanding 7.83% Capital
Securities due December 1, 2027 (the "Old Capital Securities"), upon the terms
and subject to the conditions set forth in the accompanying Prospectus, dated
____________, 1998 (as the same amended and supplemented from time to time, the
"Prospectus"), and related Letter of Transmittal (which together with the
Prospectus constitutes the "Exchange Offer").
The Exchange Offer provides a procedure for holders to tender the Old
Capital Securities by means of guaranteed delivery.
The Exchange Offer will expire at 5:00 p.m., New York City time, on
____________, 1998, unless extended (the "Expiration Date"). Tendered Old
Capital Securities may be withdrawn at any time prior to 5:00 p.m., New York
City time, on the Expiration Date, if such Old Capital Securities have not
previously been accepted for exchange pursuant to the Exchange Offer.
Based on an interpretation by the staff of the Division of Corporation
Finance of the Securities and Exchange Commission (the "SEC") as set forth in
certain interpretive letters addressed to third parties in other transactions,
Dominion Resources, Inc., a Virginia corporation ("the Company") and the Trust
believe that a holder of Old Capital Securities (other than a holder who is (a)
a broker-dealer who purchased the Old Capital Securities directly from the Trust
to resell pursuant to Rule 144A under the Securities Act or any other available
exemption under the Securities Act, (b) a person participating in the
distribution of the Old Capital Securities or (c) a person who is an "affiliate"
of the Company or the Trust) who exchanges Old
<PAGE>
Capital Securities in the Exchange Offer for New Capital Securities and then
resells such New Capital Securities will be viewed by the staff no differently
than a non-affiliated purchaser of registered securities who purchase such
securities in a registered primary offering of securities and, after completion
of such registered offering, may resell the New Capital Securities without
further compliance with the registration and prospectus delivery provisions of
the Securities Act, provided that such New Capital Securities are required in
the ordinary course of such holder's business and that such holder is not
participating, and has no arrangement or understanding with any person to
participate, in a distribution (within the meaning of the Securities Act) of
such New Capital Securities. See "Brown & Wood LLP," SEC No-Action Letter
(available February 7, 1997), "Shearman & Sterling," SEC No-Action Letter
(available July 2, 1993), "Morgan Stanley & Co., Inc., "SEC No-Action Letter
(available June 5, 1991) and "Exxon Capital Holding Corporation," SEC No-Action
Letter (available May 13, 1988).
The Exchange Offer is not conditioned on any minimum aggregate liquidation
amount of Old Capital Securities being tendered except that Old Capital
Securities may be tendered only in an aggregate liquidation amount of $100,000
(100 Old Capital Securities) and integral multiples of $1,000 (1 Old Capital
Security) in excess thereof.
Notwithstanding any other provisions of the Exchange Offer, or any
extension of the Exchange Offer, the Company and the Trust will not be required
to accept for exchange, or to exchange, any New Capital Securities for any Old
Capital Securities and may terminate the Exchange Offer (whether or not any Old
Capital Securities have been accepted for exchange) or may waive any conditions
to or amend the Exchange Offer, if any of the conditions described in the
Prospectus under "The Exchange Offer - Conditions of the Exchange Offer" have
occurred or exist or have not been satisfied.
For your information and for forwarding to your clients for whom you hold
Old Capital Securities registered in your name or in the name of your nominee,
we are enclosing the following documents:
1. A Prospectus, dated ____________, 1998.
2. A Letter of Transmittal for your use and for the information of your
clients.
3. A printed form of letter which may be sent to your clients for whose
accounts you hold Old Capital Securities registered in your name or in the name
of your nominee, with space provided for obtaining such clients' instructions
with regard to the Exchange Offer.
4. Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9 of the Internal Revenue Service (included in the Letter of
Transmittal after the instructions thereto).
WE URGE YOU TO CONTACT YOUR CLIENTS AS PROMPTLY AS POSSIBLE.
2
<PAGE>
Any inquiries you may have with respect to the Exchange Offer may be
addressed to, and additional copies of the enclosed materials may be obtained
from, the Exchange Agent at the following telephone number: (212) 638-0828.
Very truly yours,
Dominion Resources Capital Trust I
NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE YOU AS
THE AGENT OF THE TRUST, THE COMPANY, THE EXCHANGE AGENT OR ANY OTHER PERSON, OR
AUTHORIZE YOU OR ANY OTHER PERSON TO USE ANY DOCUMENT OR MAKE ANY STATEMENT ON
BEHALF OF ANY OF THEM IN CONNECTION WITH THE EXCHANGE OFFER OTHER THAN THE
DOCUMENTS ENCLOSED HEREWITH AND THE STATEMENTS CONTAINED THEREIN.
3
<PAGE>
EXHIBIT 99.5
May , 1998
EXCHANGE AGENT AGREEMENT
------------------------
The Chase Manhattan Bank
450 West 33rd Street, 15th Floor
New York, New York 10001
Ladies and Gentlemen:
Dominion Resources Capital Trust I, a Delaware statutory corporation business
trust (the "Issuer") proposes to make an offer (the "Exchange Offer") to
exchange up to $250,000,000 aggregate liquidation amount of its 7.83% Capital
Securities (liquidation amount $1,000 per Capital Security) (the "New Capital
Securities"), which have been registered under the Securities Act of 1933, as
amended (the Securities Act"), for a like liquidation amount of its outstanding
7.83% Capital Securities (liquidation amount $1,000 per Capital Security) (the
"Old Capital Securities"), of which $250,000,000 aggregate liquidation amount is
outstanding. The terms and conditions of the Exchange Offer as currently
contemplated are set forth in a prospectus, dated May , 1998 (the "Prospectus")
proposed to be distributed to all record holders of the Old Capital Securities.
Capitalized terms used herein and not otherwise defined shall have the meanings
assigned to them in the Prospectus.
The Issuer hereby appoints The Chase Manhattan Bank to act as exchange
agent (the "Exchange Agent") in connection with the Exchange Offer. References
hereinafter to "you" shall refer to The Chase Manhattan Bank.
The Exchange Offer is expected to be commenced by the Issuer on or about
May , 1998. The Letter of Transmittal accompanying the Prospectus is to be
used by the holders of the Old Capital Securities to accept the Exchange Offer,
and contains certain instructions with respect to the Exchange Offer.
The Exchange Offer shall expire at 5:00 p.m., New York City time, on ,
1998 or on such later date or time to which the Issuer or Dominion Resources,
Inc. (the "Company") may extend the Exchange Offer (the "Expiration Date").
Subject to the terms and conditions set forth in the Prospectus, the Issuer and
the Company expressly reserve the right to extend the Exchange Offer by giving
oral (promptly confirmed in writing) or written notice to you no later than 9:00
a.m., New York City time, on the next business day after the previously
scheduled Expiration Date.
The Issuer and the Company expressly reserve the right to amend or
terminate the Exchange Offer, and not to accept for exchange any Old Capital
Securities not theretofore accepted for exchange, upon the occurrence of any of
the conditions of the Exchange Offer specified in the Prospectus under the
caption "Conditions of the Exchange Offer". The Issuer or
<PAGE>
the Company will give oral (promptly confirmed in writing) or written notice of
any amendment, termination or nonacceptance to you as promptly as practicable.
In carrying our your duties as Exchange Agent, you are to act in accordance
with the following instructions:
1. You will perform such duties and only such duties as are specifically set
forth in the section of the Prospectus captioned "The Exchange Offer" and as
specifically set forth herein and such duties that are necessarily incidental
thereto; provided, however, that in no way will your general duty to act in
-------- -------
good faith be discharged by the foregoing.
2. You will establish an account with respect to the Old Capital Securities at
The Depository Trust Company (the "Book-Entry Transfer Facility") for purposes
of the Exchange Offer within two business days after the date of the Prospectus
or, if you already have established an account with the Book-Entry Transfer
Facility suitable for the Exchange Offer, you will identify such pre-existing
account to be used in the Exchange Offer, and any financial institution that is
a participant in the Book-Entry Transfer Facility's systems may make book entry
delivery of the Old Capital Securities by causing the Book- Entry Transfer
Facility to transfer such Old Capital Securities into your account in accordance
with the Book-Entry Transfer Facility's procedure for such transfer.
3. You are to examine each of the Letters of Transmittal, certificates for Old
Capital Securities and confirmations of book- entry transfers into your account
at the Book-Entry Transfer Facility and any Agent's Message or other documents
delivered or mailed to you by or for the holders of the Old Capital Securities
to ascertain whether: (i) the Letters of Transmittal and any such other
documents are duly executed and properly completed in accordance with
instructions set forth therein and (ii) the Old Capital Securities have
otherwise been properly tendered. In each case where the Letter of Transmittal
or any other document has been improperly completed or executed or any of the
certificates for Old Capital Securities are not in proper form for transfer or
some other irregularity in connection with acceptance of the Exchange Offer
exists, you will endeavor to inform the presenters of the need for fulfillment
of all requirements and to take any other action as may be necessary or
advisable to cause such irregularity to be corrected.
4. With the approval of the Issuer or the Chairman of the Board, the Chief
Executive Officer, the Chief Financial Officer or the Secretary of the Company
(such approval, if given orally, to be confirmed in writing) or any other party
designated by the Issuer or such officer of the Company in writing, you are
authorized to waive any irregularities in connection with the tender or Old
Capital Securities pursuant to the Exchange Offer.
5. Tenders of Old Capital Securities may be made only as set forth in the
section of the Prospectus captioned " Procedures for Tendering Old Capital
Securities" or in the Letter of Transmittal and Old Capital Securities shall be
considered properly tendered to you only when tendered in accordance with the
procedures set forth therein.
Notwithstanding the provisions of this paragraph 5, Old Capital Securities
which the Issuer or any other party designated by the Issuer in writing shall
approve as having been properly tendered shall be considered to be properly
tendered (such approval, if given orally, shall be confirmed in writing).
<PAGE>
6. You shall advise the Issuer with respect to any Old Capital Securities
delivered subsequent to the Expiration Date and accept its instructions with
respect to disposition of such Old Capital Securities.
7. You shall accept tenders:
(a) in cases where the Old Capital Securities are registered in two or more
names only if signed by all named holders;
(b) in cases where the signing person (as indicated on the Letter of
Transmittal) is acting in a fiduciary or a representative capacity only when
proper evidence of his or her authority to so act is submitted; and
(c) from persons other than the registered holder of Old Capital Securities
provided that customary transfer requirements, including any applicable transfer
taxes, are fulfilled.
You shall accept partial tenders of Old Capital Securities where so
indicated and as permitted in the Letter of Transmittal and deliver certificates
for Old Capital Securities to the transfer agent for split-up and return any
untendered Old Capital Securities to the holder (or to such other person as may
be designated in the Letter of Transmittal ) as promptly as practicable after
expiration or termination of the Exchange Offer.
8. Upon satisfaction or waiver of all of the conditions to the Exchange Offer,
the Issuer will notify you ( such notice if given orally, to be promptly
confirmed in writing) of the Issuer's acceptance, promptly after the Expiration
Date, of all Old Capital Securities properly tendered to you, on behalf of the
Issuer, will exchange such Old Capital Securities for New Capital Securities and
cause such Old Capital Securities to be canceled. Delivery of New Capital
Securities will be made on behalf of the Issuer by you at the rate of $1,000
liquidation amount of New Capital Securities for each $1,000 liquidation amount
of Old Capital Securities tendered promptly after notice (such notice if given
orally, to be promptly confirmed in writing) of acceptance of said Old Capital
Securities by the Issuer; provided however, that in all cases, Old Capital
-------- --------
Securities tendered pursuant to the Exchange Offer will be exchanged only after
timely receipt by you of certificates for such Old Capital Securities (or
confirmation of book-entry transfer into your account at the Book-Entry Transfer
Facility), a properly completed and duly executed Letter of Transmittal (or
facsimile thereof) with any required signature guarantees (or in lieu thereof an
Agent's Message) and any other required document. You shall issue New Capital
Securities only in denominations of $100,000 liquidation amount and integrals of
$1,000 liquidation amount thereof.
9. Tenders pursuant to the Exchange Offer are irrevocable, except that,
subject to the terms and upon the conditions set forth in the Prospectus and the
Letter of Transmittal, Old Capital Securities tendered pursuant to the Exchange
Offer may be withdrawn at any time on or prior to the Expiration Date.
10. The Company and the Issuer shall not be required to exchange any Old
Capital Securities tendered if any of the conditions set forth in the Exchange
Offer are not met. Notice of any decision by the Company and the Issuer not to
exchange any Old Capital Securities tendered shall
<PAGE>
be given (such notice, if given orally, shall be promptly confirmed in writing)
by the Company or the Issuer to you.
11. If, pursuant to the Exchange Offer, the Issuer does not accept for exchange
all or part of the Old Capital Securities tendered because of invalid tender,
the occurrence of certain other events set forth in the Prospectus under the
caption "The Exchange Offer-- Conditions of the Exchange Offer" or otherwise,
you shall as soon as practicable after the expiration or termination of the
Exchange Offer return those certificates for unaccepted Old Capital Securities
(or effect the appropriate book-entry transfer of the unaccepted Old Capital
Securities), and return any related required documents and the Letters of
Transmittal relating thereto that are in your possession, to the persons who
deposited them.
12. All certificates for reissued Old Capital Securities or for unaccepted Old
Capital Securities shall be forwarded by (a) first-class mail, return receipt
requested, under a blanket surety bond protecting you, the Issuer and the
Company from loss or liability arising out of the non-receipt or non-delivery
or such certificates or (b) by registered mail insured separately for the
replacement value of such certificates.
13. You are not authorized to pay or offer to pay any concession, commissions
or solicitation fees to any broker, dealer, bank or other persons or to engage
or utilize any person to solicit tenders.
14. As Exchange Agent hereunder you:
(a) will be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value or genuineness of Old
Capital Securities, and will not be required to and will make no representation
as to the validity, value or genuineness of the Exchange Offer; provided
---------
however, that in no way will your general duty to act in good faith be
- ---------
discharged by the foregoing;
(b) shall not be obligated to take any legal action hereunder which might
in your reasonable judgment involve any expense or liability, unless you shall
have been furnished with reasonable indemnity;
(c) shall not be liable to the Company or the Issuer for any action taken
or omitted by you, or any action suffered by you to be taken or omitted, without
negligence, misconduct or bad faith on your part, by reason of or as a result of
the administration of your duties hereunder in accordance with the terms and
conditions of this Agreement or by reason of your compliance with the
instructions set forth herein or with any written or oral instructions delivered
to you pursuant hereto, and may reasonably rely on and shall be protected in
acting in good faith in reliance upon any certificate, instrument, opinion,
notice, letter, facsimile or other document or security delivered to you and
reasonably believed by you to be genuine and to have been signed by the proper
party or parties;
<PAGE>
(d) may reasonably act upon any tender, statement, request, comment,
agreement or other instrument whatsoever not only as to its due execution and
validity and the effectiveness of its provisions, but also as to the truth and
accuracy of any information contained therein, which you shall in good faith
reasonably believe to be genuine or to have been signed or represented by a
proper person or persons;
(e) may rely on and shall be protected in acting upon written or oral
instructions from the Issuer or any officer of the Company with respect to the
Exchange Offer;
(f) shall not advise any person tendering Old Capital Securities pursuant
to the Exchange Offer as to the wisdom of making such tender or as to the market
value or decline or appreciation in market value of any Old Capital Securities;
and
(g) may consult with your counsel with respect to any questions relating to
your duties and responsibilities and the written opinion of such counsel shall
be full and complete authorization and protection in respect of any action
taken, suffered or omitted by you hereunder in good faith and in accordance with
such written opinion of such counsel.
15. You shall take such action as may from time to time be requested by the
Company, the Issuer or their counsel (and such other action as you may
reasonably deem appropriate) to furnish copies of the Prospectus, Letter of
Transmittal and the Notice of Guaranteed Delivery, or such other forms as may be
approved from time to time by the Company or the Issuer, to all persons
requesting such documents and to accept and comply with telephone requests for
information relating to the Exchange Offer, provided that such information shall
relate only to the procedures for accepting (or withdrawing from) the Exchange
Offer. The Company or the Issuer will furnish you with copies of such documents
at your request. All other requests for information relating to the Exchange
Offer shall be directed to the (name) at the Company at (address).
16. You shall advise by facsimile transmission or telephone and promptly
thereafter confirm in writing to the Issuer and the Company, and such other
person or persons as they may request, daily, and more frequently, if reasonably
requested, up to and including the Expiration Date, as to the principal amount
of the Old Capital Securities which have been tendered pursuant to the Exchange
Offer and the items received by you pursuant to this Agreement, separately
reporting and , given cumulative totals to the items properly received and items
improperly received and items covered by Notices of Guaranteed Delivery. In
addition, you will also inform, and cooperate in making available to, the
Company or the Issuer or any such other person or persons as the Company or the
Issuer request from time to time prior to the Expiration Date of such other
information as they, or he reasonably requests. Such cooperation shall include,
without limitation, the granting by you to the Company, the Issuer and such
person as the Company or the Issuer may request of access to those persons on
your staff who are responsible for receiving tenders, in order to ensure that
immediately prior to the Expiration Date, the Company and the Issuer shall have
received information in sufficient detail to enable them to decide whether to
extend the Exchange Offer. You shall prepare a list of persons who failed to
tender or whose tenders were not accepted and the aggregate principal amount of
Old Capital Securities not accepted and deliver said list to the Company and the
Issuer at least seven days prior to the Expiration Date. You shall also
prepare a final list of all persons whose tenders were accepted, the aggregate
principal amount of Old Capital Securities accepted and deliver said list to the
Company.
<PAGE>
17. Letters of Transmittal and Notices of Guaranteed Delivery shall be stamped
by you as to the date and the time of receipt thereof and shall be preserved by
you for a period of time at least equal to the period of time you preserve other
records pertaining to the transfer of securities. You shall dispose of unused
Letters of Transmittal and other surplus materials by returning them to the
Company.
18. For services rendered as Exchange Agent hereunder you shall be entitled to
a fee of $5,000 and you shall be entitled to reimbursement of your expenses
(including fees and expenses of your counsel) incurred in connection with the
Exchange Offer. The obligations under this Section 18 shall constitute joint
and several obligations of the Issuer and the Company.
19. You hereby acknowledge receipt of the Prospectus and the Letter of
Transmittal and further acknowledge that you have examined each of them to the
extent necessary to perform your obligations hereunder. Any inconsistency
between this Agreement, on the one hand, and the Prospectus and the Letter of
Transmittal (as they may be amended from time to time ), on the other hand,
shall be resolved in favor of the latter two documents, except with respect to
the duties, liabilities and indemnification of you as Exchange Agent, which
shall be controlled by this Agreement.
20. The Company and the Issuer jointly and severally agree to indemnify and
hold you harmless in your capacity as Exchange Agent hereunder against any
liability, cost, or expense, including reasonable attorney's fees, arising out
of or in connection with the acceptance, administration of your duties
hereunder, including, without limitation, in connection with any act, omission,
delay or refusal made by you in reasonable reliance upon any signature,
endorsement, assignment, certificate, order, request, notice, instruction, or
other instrument or document reasonably believed by you to be valid, genuine and
sufficient and in accepting any tender or effecting any transfer of Old Capital
Securities reasonably believed by you in good faith to be authorized, and in
delaying or refusing in good faith to accept any tenders or effect any transfer
of Old Capital Securities; provided, however that the Company and the Issuer
--------- -------
shall not be liable for indemnification or otherwise for any loss, liability,
cost or expense to the extent arising out of your negligence, willful breach of
this Agreement, willful misconduct or bad faith. In no case shall the Company
and the Issuer be liable under this indemnity with respect to any claim against
you unless the Company and the Issuer shall be notified by you, by letter or
cable or by facsimile confirmed by letter of the written assertion of a claim
against you or any other action commenced against you, promptly after you shall
have received any such written assertion or commencement of such action. The
Company and the Issuer shall be entitled to participate at their own expense in
the defense of any such claim or other action, and if the Company and the Issuer
so elect, shall assume the defense of any suit brought to enforce any such
claim. In the event that the Company and the Issuer shall assume the defense of
any such suit, the Company and the Issuer shall not be liable for the fees and
expenses of any additional counsel thereafter retained by you so long as the
Company and the Issuer shall retain counsel reasonably satisfactory to you to
defend such suit. You shall not compromise or settle any such action or claim
without the consent of the Company and the Issuer.
21. This Agreement and your appointment as Exchange Agent hereunder shall be
construed and enforced in accordance with the laws of the State of New York
applicable to agreements made and to be performed entirely within such state,
and without regard to conflicts of law principles, and shall inure to the
benefit of, and the obligations created hereby shall be binding upon, the
successors and assigns of each of the parties hereto.
<PAGE>
22. This Agreement may be executed in two or more counterparts, each of which
shall be deemed to be an original and all of which taken together constitute one
and the same agreement.
23. In case any provision of this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
24. This Agreement shall not be deemed or construed to be modified, amended,
rescinded, canceled, or waived, in whole or in part except by a written
instrument signed by a duly authorized representative of the party to be
charged. This Agreement may not be modified orally.
25. Unless otherwise provided herein, all notices, requests and other
communications to any party hereunder shall be in writing (including facsimile)
and shall be given to such party, addressed to it, at its address or telecopy
number set forth below:
If to the Company or the Issuer:
Dominion Resources, Inc.
901 East Byrd Street Suite 1700
Richmond, VA 23219-6111
Facsimile: (804) 775-5819
Attention: Treasurer
If to the Exchange Agent:
The Chase Manhattan Bank
450 West 33rd Street
15th Floor
New York, New York 10001
Facsimile: (212) 946-8159
Attention: Patricia A. Kelly
26. Unless terminated earlier by the parties hereto, this Agreement shall
terminate 90 days following the Expiration Date. Notwithstanding the foregoing,
Paragraphs 18 and 20 shall survive the termination of this Agreement. Except as
provided in Section 17, upon any termination of this Agreement, you shall
promptly deliver to the Company any funds or property (including without
limitation, Letters of Transmittal and any other documents relating to the
Exchange Offer) then held by you as Exchange Agent under this Agreement.
27. This Agreement shall be binding and effective as of the date hereof.
Please acknowledge receipt of this Agreement and confirm the arrangements herein
provided by signing and returning the enclosed copy.
<PAGE>
Dominion Resources Inc.
________________________
Name
Title
Dominion Resources Capital Trust I
_____________________________
Name
Title
Accepted as of the date
first above written:
The Chase Manhattan Bank,
as Exchange Agent
By:____________________
Name:
Title:
