<PAGE>
As Filed with the Securities and Exchange Commission on December 21, 1999
File No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
DOMINION RESOURCES, INC. VIRGINIA 54-1229715
(Exact name of (State or other (I.R.S. Employer
registrant as specified jurisdiction of Identification No.)
in its charter) incorporation or
organization)
DOMINION RESOURCES DELAWARE APPLIED FOR
CAPITAL TRUST II (State or other (I.R.S. Employer
(Exact name of jurisdiction of Identification No.)
registrant as specified incorporation or
in its Trust Agreement) organization)
DOMINION RESOURCES DELAWARE APPLIED FOR
CAPITAL TRUST III (State or other (I.R.S. Employer
(Exact name of jurisdiction of Identification No.)
registrant as specified incorporation or
in its Trust Agreement) organization)
120 TREDEGAR STREET
RICHMOND, VIRGINIA 23219
(804) 819-2000
(Address including zip code, and telephone number, including area code, of
registrants' principal executive offices)
PATRICIA A. WILKERSON, VICE PRESIDENT AND CORPORATE SECRETARY
W. H. RIGGS, JR., ASSISTANT CORPORATE SECRETARY
DOMINION RESOURCES, INC.
120 TREDEGAR STREET, RICHMOND, VIRGINIA 23219
(804) 819-2000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
With a Copy to:
JAMES F. STUTTS ROBERT L. BURRUS, JR.
DOMINION RESOURCES, INC. McGUIRE, WOODS, BATTLE & BOOTHE LLP
120 TREDEGAR STREET ONE JAMES CENTER
RICHMOND, VIRGINIA 23219 RICHMOND, VIRGINIA 23219-4030
Approximate date of commencement of proposed sale to the public: From time to
time after effectiveness
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, check the following box.
[_]
If any of the securities being registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please 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(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 delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
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<PAGE>
CALCULATION OF REGISTRATION FEE (1)
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<TABLE>
<CAPTION>
Proposed
Title of each Class of Maximum Offering Proposed Maximum Amount of
Securities to be Amount To be Price Per Share Aggregate Registration
Registered Registered (2) Offering Price Fee
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<S> <C> <C> <C> <C>
Senior Debt Securities
Junior Subordinated
Debentures
Trust Preferred
Securities and Related
Guarantee(3)
Common Stock (without
par value)(4)
Preferred Stock
Stock Purchase Contracts
Stock Purchase Units(5)
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TOTAL $4,500,000,000 $4,500,000,000 $1,188,000
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</TABLE>
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(1) Estimated in accordance with Rule 457 solely for the purpose of
calculating the registration fee. Such amount in U.S. dollars or the
equivalent thereof in other currencies, as shall result in an aggregate
offering price for all securities of $4,500,000,000.
(2) Omitted pursuant to General Instruction II.D. of Form S-3.
(3) No separate consideration will be received for the guarantee by Dominion
Resources, Inc.
(4) Includes an indeterminate number of shares of Common Stock to be issued by
Dominion Resources, Inc. upon settlement of the Stock Purchase Contracts.
(5) Each Stock Purchase Unit of Dominion Resources, Inc. consists of (a) a
Stock Purchase Contract, under which the holder, upon settlement, will
purchase an indeterminate number of shares of Common Stock of Dominion
Resources, Inc. and (b) either a beneficial interest in Senior Debt
Securities, Trust Preferred Securities, Preferred Stock or debt
obligations of third parties, including U.S. Treasury securities,
purchased with the proceeds from the sale of the Stock Purchase Units.
Each beneficial interest will be pledged to secure the obligation of such
holder to purchase such shares of Common Stock. No separate consideration
will be received for the Stock Purchase Contracts or the related
beneficial interests .
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 Section
8(a), may determine.
<PAGE>
SUBJECT TO COMPLETION
DATED DECEMBER 21, 1999
Prospectus
[LOGO OF DOMINION RESOURCES]
DOMINION RESOURCES, INC.
120 Tredegar Street
Richmond, Virginia 23219
(804) 819-2000
$4,500,000,000
Senior Debt Securities
Junior Subordinated Debentures
Trust Preferred Securities and Related Guarantee
Common Stock
Preferred Stock
Stock Purchase Contracts
Stock Purchase Units
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this Prospectus. Any representation to the contrary is
a criminal offense.
This prospectus is dated December , 1999.
<PAGE>
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
Securities and Exchange Commission utilizing a shelf registration process.
Under this shelf process, we may, from time to time, sell any combination of
the securities described in this prospectus in one or more offerings up to a
total dollar amount of $4,500,000,000. This prospectus provides you with a
general description of the securities we may offer. Each time we sell
securities, we will provide a prospectus supplement that will contain specific
information about the terms of that offering. Material United States federal
income tax considerations applicable to the offered securities will also be
discussed in the applicable prospectus supplement. The prospectus supplement
may also add, update or change information contained in this prospectus. You
should read both this prospectus and any prospectus supplement together with
additional information described under the heading WHERE YOU CAN FIND MORE
INFORMATION.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. Our 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 we file 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. You may also
read and copy these documents at the offices of the New York Stock Exchange, 20
Broad Street, New York, New York 10005.
The SEC allows us to incorporate by reference the information we file with
them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
an important part of this prospectus, and information that we file later with
the SEC will automatically update and supersede this information. We
incorporate 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 we sell all of the securities.
.Annual Report on Form 10-K for the year ended December 31, 1998;
.Quarterly Reports on Form 10-Q for the quarters ended March 31, 1999, June 30,
1999 and September 30, 1999;
.Current Report on Form 8-K filed March 29, 1999; and
.The description of our common stock contained in Form 8-B (Item 4) dated April
29, 1983.
You may request a copy of these filings at no cost, by writing or telephoning
us at the following address:
Corporate Secretary
Dominion Resources, Inc.
120 Tredegar Street
Richmond, Virginia 23219
(804) 819-2000
You should rely only on the information incorporated by reference or provided
in this prospectus or any prospectus supplement. We have not authorized anyone
else to provide you with different information. We are not making an offer of
these securities in any state where the offer is not permitted. You should not
assume that the information in this prospectus or any prospectus supplement is
accurate as of any date other than the date on the front of those documents.
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THE COMPANY
Dominion Resources, Inc. is a diversified utility holding company
headquartered in Richmond, Virginia. Our principal operating subsidiaries are
Virginia Electric and Power Company, a regulated public utility, engaged in the
generation, transmission, distribution and sale of electric energy, Dominion
Energy, Inc., an independent power and natural gas subsidiary, and Dominion
Capital, Inc., a financial services subsidiary. We also own an 80% interest in
and operate a 365 megawatt natural gas fired generating facility in the United
Kingdom.
In May 1999, we entered into a merger agreement with Consolidated Natural Gas
Company (CNG), one of the nation's largest producers, transporters,
distributors and retail marketers of natural gas. The merger is scheduled to
close on January 28, 2000. As a result of the merger with CNG, we will become a
registered public utility holding company under the provisions of the Public
Utility Holding Company Act of 1935 (1935 Act). Because of limits the 1935 Act
will impose on our non-utility activities, it will be necessary for us to
divest ourselves of Dominion Capital, Inc. after the merger.
THE TRUSTS
Each of Dominion Resources Capital Trust II and Dominion Resources Capital
Trust III is a statutory business trust newly formed under Delaware law by us,
as sponsor for the Trust, and Chase Manhattan Bank Delaware, who will serve as
trustee in the State of Delaware for the purpose of complying with the
provisions of the Delaware Business Trust Act. The trust agreement for each of
the Trusts will be amended and restated substantially in the form filed as an
exhibit to the registration statement, effective when securities of the Trusts
are initially issued. The amended trust agreement will be qualified as an
indenture under the Trust Indenture Act of 1939.
Each Trust exists for the exclusive purposes of
.issuing two classes of trust securities, trust preferred securities and trust
common securities, which together represent undivided beneficial interests in
the assets of each Trust;
.investing the gross proceeds of the trust securities in our Junior
Subordinated Debentures;
.making distributions; and
.engaging in only those other activities necessary, advisable or incidental to
the purposes listed above.
The Junior Subordinated Debentures will be the sole assets of each Trust, and
our payments under the Junior Subordinated Debentures and the Agreement as to
Expenses and Liabilities will be the sole revenue of each Trust.
No separate financial statements of any Trust are included in this
prospectus. We consider that these financial statements would not be material
to holders of the Trust preferred securities because no Trust has any
independent operations and the purposes of each Trust are as described above.
We do not expect that any of the Trusts will be filing annual, quarterly or
special reports with the SEC.
The principal place of business of each of the Trusts will be c/o Dominion
Resources, Inc., 120 Tredegar Street, Richmond, VA 23219.
USE OF PROCEEDS
The net proceeds from the sale of the offered securities will be used for
financing our merger with CNG, refinancing of our
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debt incurred in connection with that merger, and for other general corporate
purposes.
RATIO OF EARNINGS TO FIXED CHARGES
The ratio of earnings to fixed charges for each of the periods indicated is
as follows:
<TABLE>
<CAPTION>
Twelve Twelve Months ended Dec. 31,
Months ended -----------------------------
Sep. 30, 1999(/2/) 1994 1995 1996 1997(/1/) 1998
- ------------------ ---- ---- ---- --------- ----
<S> <C> <C> <C> <C> <C>
2.07 2.77 2.55 2.71 1.97 2.36
</TABLE>
These computations include us and our subsidiaries, and certain other
companies in which we hold an equity interest. 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.
- --------
(1) 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
U.K. 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 2.22x.
(2) Net income for the twelve months ended September 30, 1999 includes the
one-time charge of $254.8 million for the write-off of regulatory assets.
Excluding this charge from the calculation above results in a ratio of
earnings to fixed charges for the twelve months ended September 30, 1999
of 2.55x.
DESCRIPTION OF DEBT SECURITIES
The term Debt Securities includes the Senior Debt Securities and the Junior
Subordinated Debentures. We will issue the Senior Debt Securities in one or
more series under a Senior Indenture between us and The Chase Manhattan Bank
as Trustee. We will issue the Junior Subordinated Debentures in one or more
series under our Junior Subordinated Indenture dated as of December 1, 1997
between us and The Chase Manhattan Bank as Trustee, as supplemented from time
to time. The Indenture related to the Junior Subordinated Debentures is called
the Subordinated Indenture in this prospectus, and together, the Senior
Indenture and the Subordinated Indenture are called Indentures. We have
summarized selected provisions of the Indentures below. The form of the Senior
Indenture and the Subordinated Indenture have been filed as exhibits to the
registration statement and you should read the Indentures for provisions that
may be important to you. In the summary below, we have included references to
section numbers of the Indentures so that you can easily locate these
provisions. Capitalized terms used in the summary have the meanings specified
in the Indentures.
General
The Senior Debt Securities will be our direct, unsecured obligations and
will rank equally with all of our other senior and unsubordinated debt. The
Junior Subordinated Debentures will be our unsecured obligations and are
junior in
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right of payment to our Senior Indebtedness, as described under the caption
ADDITIONAL TERMS OF JUNIOR SUBORDINATED DEBENTURES--SUBORDINATION.
Because we are a holding company that conducts all of our operations through
our subsidiaries, our ability to meet our obligations under the Debt Securities
is dependent on the earnings and cash flows of those subsidiaries and the
ability of those subsidiaries to pay dividends or to advance or repay funds to
us. Holders of Debt Securities will generally have a junior position to claims
of creditors of our subsidiaries, including trade creditors, debtholders,
secured creditors, taxing authorities, guarantee holders and any preferred
stockholders. Virginia Power has 6,890,140 issued and outstanding shares of
preferred stock. In addition to trade debt, all of our operating subsidiaries
have ongoing corporate debt programs used to finance their business activities.
As ofSeptember 30, 1999, our subsidiaries had approximately $6.9 billion of
outstanding debt.
Neither of the Indentures limits the amount of Debt Securites that we may
issue under it. We may issue Debt Securities from time to time under the
Indentures in one or more series by entering into supplemental indentures or by
our Board of Directors or a duly authorized committee authorizing the issuance.
A form of supplemental indenture to each of the Indentures is an exhibit to the
registration statement.
The Indentures do not protect the holders of Debt Securities if we engage in
a highly leveraged transaction.
Provisions of a Particular Series
The Debt Securities of a series need not be issued at the same time, bear
interest at the same rate or mature on the same date. The prospectus supplement
for a particular series of Debt Securities will specify the terms of that
series, including, if applicable, some or all of the following:
.the title and type of the Debt Securities;
.the total principal amount of the Debt Securities;
.the portion of the principal payable upon acceleration of maturity, if other
than the entire principal;
.the date or dates on which principal is payable or the method for determining
the date or dates, and any right that we have to change the date on which
principal is payable;
.the interest rate or rates, if any, or the method for determining the rate or
rates, and the date or dates from which interest will accrue;
.any interest payment dates and the regular record date for the interest
payable on each interest payment date, if any;
.any payments due if the maturity of the Debt Securities is accelerated;
.any optional redemption terms, or, with respect to the Senior Debt Securities,
any repayment terms;
.any provisions that would obligate us to repurchase or otherwise redeem the
Debt Securities, or, with respect to the Senior Debt Securities, any sinking
fund provisions;
.the currency in which payments will be made if other than U.S. dollars, and
the manner of determining the equivalent of those amounts in U.S. dollars;
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.if payments may be made, at our election or at the holder's election, in a
currency other than that in which the Debt Securities are stated to be
payable, then the currency in which those payments may be made, the terms and
conditions of the election and the manner of determining those amounts;
.any index or formula used for determining principal, interest, or premium, if
any;
.the percentage of the principal amount at which the Debt Securities will be
issued, if other than 100% of the principal amount;
.whether to be issued in fully registered certificated form or book-entry form,
represented by certificates deposited with, or on behalf of, a securities
depositary and registered in the name of the depositary's nominee (Book-Entry
Debt Securities);
.denominations, if other than $1,000 each or multiples of $1,000;
.any changes to events of defaults or covenants; and
.any other terms of the Debt Securities. (Sections 201 & 301 of the Senior
Indenture & Sections 2.1 & 2.3 of the Subordinated Indenture.)
The prospectus supplement will also indicate any special tax implications of
the Debt Securities and any provisions granting special rights to holders when
a specified event occurs.
Conversion or Redemption
No Debt Security will be subject to conversion, amortization, or redemption,
unless otherwise provided in the applicable prospectus supplement. Any
provisions relating to the conversion or redemption of Debt Securities will be
set forth in the applicable prospectus supplement, including whether conversion
is mandatory or at our option. If no redemption date or redemption price is
indicated with respect to a Debt Security, we may not redeem the Debt Security
prior to Stated Maturity. Debt Securities subject to redemption by us will be
subject to the following terms:
.redeemable on and after the applicable redemption dates;
.redemption dates and redemption prices fixed at the time of sale and set forth
on the Debt Security; and
.redeemable in whole or in part (provided that any remaining principal amount
of the Debt Security will be equal to an authorized denomination) at our
option at the applicable redemption price, together with interest, payable to
the date of redemption, on notice given not more than 60 nor less than 20
days prior to the date of redemption. (Section 1104 of the Senior Indenture &
Section 3.2 of the Subordinated Indenture.)
We will not be required to:
.issue, register the transfer of, or exchange any Debt Securities of a series
during the period beginning 15 days before the date the notice is mailed
identifying the Debt Securities of that series that have been selected for
redemption; or
.register the transfer of, or exchange any Debt Security of that series
selected for redemption except the unredeemed portion of a Debt Security
being partially redeemed. (Section 305 of the Senior Indenture & Section 2.5
of the Subordinated Indenture.)
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Payment and Transfer; Paying Agent
The paying agent will pay the principal of any Debt Securities only if those
Debt Securities are surrendered to it. Unless we state otherwise in the
applicable prospectus supplement, the paying agent will pay principal, interest
and premium, if any, on Debt Securities, subject to such surrender, where
applicable, at its office or, at our option:
.by wire transfer to an account at a banking institution in the United States
that is designated in writing to the Trustee prior to the deadline set forth
in the applicable prospectus supplement by the person entitled to that
payment (which in the case of Book-Entry Debt Securities is the securities
depositary or its nominee); or
.by check mailed to the address of the person entitled to that interest as that
address appears in the security register for those Debt Securities. (Sections
307 & 1001 of the Senior Indenture & Section 4.1 of the Subordinated
Indenture.)
Neither we nor the Trustee will have any responsibility or liability for any
aspect of the records relating to or payments made on account of beneficial
ownership interests in a Book-Entry Debt Security, or for maintaining,
supervising or reviewing any records relating to the beneficial ownership
interests. We expect that the securities depositary, upon receipt of any
payment of principal, interest or premium, if any, in a Book-Entry Debt
Security, will credit immediately the accounts of the related participants with
payment in amounts proportionate to their respective holdings in principal
amount of beneficial interest in the Book-Entry Debt Security as shown on the
records of the securities depositary. We also expect that payments by
participants to owners of beneficial interests in a Book-Entry Debt Security
will be governed by standing customer instructions and customary practices, as
is now the case with securities held for the accounts of customers in bearer
form or registered in "street name" and will be the responsibility of the
participants.
Unless we state otherwise in the applicable prospectus supplement, the
Trustee will act as paying agent for the Debt Securities, and the principal
corporate trust office of the Trustee will be the office through which the
paying agent acts. We may, however, change or add paying agents or approve a
change in the office through which a paying agent acts. (Section 1002 of the
Senior Indenture & Section 4.4 of the Subordinated Indenture.)
Any money that we have paid to a paying agent for principal or interest on
any Debt Securities which remains unclaimed at the end of two years after that
principal or interest has become due will be repaid to us at our request. After
repayment to the Company, holders should look only to us for those payments.
(Section 1003 of the Senior Indenture & Section 12.4 of the Subordinated
Indenture.)
Fully registered securities may be transferred or exchanged at the corporate
trust office of the Trustee or at any other office or agency we maintain for
those purposes, without the payment of any service charge except for any tax or
governmental charge. (Section 1002 of the Senior Indenture & Section 2.5 of the
Subordinated Indenture.)
Global Securities
We may issue some or all of the Debt Securities as Book-Entry Debt
Securities. Book-Entry Debt Securities will be represented by one or more fully
registered
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global certificates. Book-Entry Debt Securities of like tenor and terms up to
$200,000,000 aggregate principal amount may be represented by a single global
certificate. Each global certificate will be deposited and registered with the
securities depositary or its nominee or a custodian for the securities
depositary. Unless it is exchanged in whole or in part for Debt Securities in
definitive form, a global certificate may generally be transferred only as a
whole unless it is being transferred to certain nominees of the depositary.
(Section 305 of the Senior Indenture & Section 2.5 of the Subordinated
Indenture.)
Unless otherwise stated in any prospectus supplement, The Depository Trust
Company will act as the securities depositary. Beneficial interests in global
certificates will be shown on, and transfers of global certificates will be
effected only through, records maintained by the securities depositary and its
participants. If there are any additional or differing terms of the depositary
arrangement with respect to the Book-Entry Debt Securities, we will describe
them in the applicable prospectus supplement.
Holders of beneficial interests in Book-Entry Debt Securities represented by
a global certificate are referred to as beneficial owners. Beneficial owners
will be limited to institutions having accounts with the securities depositary
or its nominee, which are called participants in this discussion, and to
persons that hold beneficial interests through participants. When a global
certificate representing Book-Entry Debt Securities is issued, the securities
depositary will credit on its book-entry, registration and transfer system the
principal amounts of Book-Entry Debt Securities the global certificate
represents to the accounts of its participants. Ownership of beneficial
interests in a global certificate will be shown only on, and the transfer of
those ownership interests will be effected only through, records maintained by:
.the securities depositary, with respect to participants' interests; and
.any participant, with respect to interests the participant holds on behalf of
other persons.
As long as the securities depositary or its nominee is the registered holder
of a global certificate representing Book-Entry Debt Securities, that person
will be considered the sole owner and holder of the global certificate and the
Book-Entry Debt Securities it represents for all purposes. Except in limited
circumstances, beneficial owners:
.may not have the global certificate or any Book-Entry Debt Securities it
represents registered in their names;
.may not receive or be entitled to receive physical delivery of certificated
Book-Entry Debt Securities in exchange for the global certificate; and
.will not be considered the owners or holders of the global certificate or any
Book-Entry Debt Securities it represents for any purposes under the Debt
Securities or the Indentures. (Section 2.2 of the Subordinated Indenture.)
We will make all payments of principal, interest and premium, if any, on a
Book-Entry Debt Security to the securities depositary or its nominee as the
holder of the global certificate. The laws of some jurisdictions require that
certain purchasers of securities take physical delivery of securities in
definitive form. These laws
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may impair the ability to transfer beneficial interests in a global
certificate.
Payments participants make to beneficial owners holding interests through
those participants will be the responsibility of those participants. The
securities depositary may from time to time adopt various policies and
procedures governing payments, transfers, exchanges and other matters relating
to beneficial interests in a global certificate. None of the following will
have any responsibility or liability for any aspect of the securities
depositary's or any participant's records relating to beneficial interests in
a global certificate representing Book-Entry Debt Securities, for payments
made on account of those beneficial interests or for maintaining, supervising
or reviewing any records relating to those beneficial interests:
.the Company;
.the Trustee;
.the Trust (only with respect to the Junior Subordinated Debentures if the
Junior Subordinated Debentures are issued to a Trust); or
.any agent of any of the above.
Covenants
Under the Indentures we will:
.pay the principal, interest and premium, if any, on the Debt Securities when
due;
.maintain a place of payment;
.deliver an officer's certificate to the Trustee at the end of each fiscal
year confirming our compliance with our obligations under each of the
Indentures; and
.deposit sufficient funds with any paying agent on or before the due date for
any principal, interest or premium, if any. (Sections 1001, 1002, 1003 &
1006 of the Senior Indenture & Sections 4.1, 4.2 4.4 & 4.6 of the
Subordinated Indenture.)
Consolidation, Merger or Sale
The Indentures provide that we may consolidate or merge with or into, or
sell all or substantially all of our properties and assets to, another
corporation or other entity, provided that any successor assumes our
obligations under the Indentures and the Debt Securities issued under the
Indentures. We must also deliver an opinion of counsel to the Trustee
affirming our compliance with all conditions in the applicable Indenture
relating to the transaction. When the conditions are satisfied, the successor
will succeed to and be substituted for us under the Senior Indenture, and we
will be relieved of our obligations under the Senior Indenture and the Debt
Securities issued under them. (Sections 801 & 802 of the Senior Indenture &
Sections 11.1, 11.2 & 11.3 of the Subordinated Indenture.)
Events of Default
Event of Default when used in each of the Indentures, will mean any of the
following:
.failure to pay the principal or any premium on any Debt Security when due;
.with respect to the Senior Debt Securities, failure to deposit any sinking
fund payment when due that continues for 60 days;
.failure to pay any interest on any Debt Securities of that series, when due,
that continues for 60 days (or for 30 days in the case of any Junior
Subordinated
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Debentures); provided that, if applicable, for this purpose, the date on
which interest is due is the date on which we are required to make payment
following any deferral of interest payments by it under the terms of Junior
Subordinated Debentures that permit such deferrals;
.failure to perform any other covenant in the Indentures (other than a covenant
expressly included solely for the benefit of other series) that continues for
90 days after the Trustee or the holders of at least 33% of the outstanding
Debt Securities (25% in the case of the Junior Subordinated Debentures) of
that series give us written notice of the default;
.certain events in bankruptcy, insolvency or reorganization of the Company; or
.any other Event of Default included in the Indentures or any supplemental
indenture. (Section 501 of the Senior Indenture & Section 6.1 of the
Subordinated Indenture.)
In the case of a general covenant default described above, the Trustee may
extend the grace period. In addition, if holders of a particular series have
given a notice of default, then holders of at least the same percentage of Debt
Securities of that series, together with the Trustee, may also extend the grace
period. The grace period will be automatically extended if we have initiated
and are diligently pursuing corrective action.
An Event of Default for a particular series of Debt Securities does not
necessarily constitute an Event of Default for any other series of Debt
Securities issued under the Indentures. Additional events of default may be
established for a particular series and, if established, will be described in
the applicable prospectus supplement.
If an Event of Default for any series of Debt Securities occurs and
continues, the Trustee or the holders of at least 33% (25%, in the case of the
Junior Subordinated Debentures) in aggregate principal amount of the Debt
Securities of the series may declare the entire principal of all the Debt
Securities of that series to be due and payable immediately. If this happens,
subject to certain conditions, the holders of a majority of the aggregate
principal amount of the Debt Securities of that series can void the trust
agreement. (Section 502 of the Senior Indenture & Section 6.1 of the
Subordinated Indenture.)
The Trustee may withhold notice to the holders of Debt Securities of any
default (except in the payment of principal or interest) if it considers the
withholding of notice to be in the best interests of the holders. Other than
its duties in case of a default, a Trustee is not obligated to exercise any of
its rights or powers under the Indentures at the request, order or direction of
any holders, unless the holders offer the Trustee reasonable indemnity. If they
provide this reasonable indemnification, the holders of a majority in principal
amount of any series of Debt Securities may direct the time, method and place
of conducting any proceeding or any remedy available to the Trustee, or
exercising any power conferred upon the Trustee, for any series of Debt
Securities. (Sections 512, 601 & 602 of the Senior Indenture & Sections 6.6,
7.1 & 7.2 of the Subordinated Indenture.)
The holder of any Debt Security will have an absolute and unconditional right
to receive payment of the principal, any premium and, within certain
limitations, any interest on that Debt Security on its maturity date or
redemption date and to
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enforce those payments. (Section 508 of the Senior Indenture & Section 14.2 of
the Subordinated Indenture.)
Satisfaction; Discharge
We may discharge all our obligations (except those described below) to
holders of the Debt Securities issued under the Indentures, which Debt
Securities have not already been delivered to the Trustee for cancellation and
which either have become due and payable or are by their terms due and payable
within one year, or are to be called for redemption within one year, by
depositing with the Trustee an amount certified to be sufficient to pay when
due the principal, interest and premium, if any, on all outstanding Debt
Securities. However, certain of our obligations under the Indentures will
survive, including with respect to the following:
.remaining rights to register the transfer, conversion, substitution or
exchange of Debt Securities of the applicable series;
.rights of holders to receive payments of principal of, and any interest on,
the Debt Securities of the applicable series, and other rights, duties and
obligations of the holders of Debt Securities with respect to any amounts
deposited with the Trustee; and
.the rights, obligations and immunities of the Trustee under the Indentures.
(Section 401 of Senior Indenture & Section 12.1 of Subordinated Indenture.)
Modification of Indentures; Waiver
Under the Indentures our rights and obligations and the rights of the holders
may be modified with the consent of the holders of a majority in aggregate
principal amount of the outstanding Debt Securities of each series affected by
the modification. No modification of the principal or interest payment terms,
and no modification reducing the percentage required for modifications, is
effective against any holder without its consent. (Section 902 of the Senior
Indenture & Section 10.2 of the Subordinated Indenture.) In addition, we may
supplement the Indentures to create new series of Debt Securities and for
certain other purposes, without the consent of any holders of Debt Securities.
(Section 901 of the Senior Indenture & Section 10.1 of the Subordinated
Indenture.)
The holders of a majority of the outstanding Debt Securities of all series
under the applicable Indenture with respect to which a default has occurred and
is continuing may waive a default for all those series, except a default in the
payment of principal or interest, or any premium, on any Debt Securities or a
default with respect to a covenant or provision which cannot be amended or
modified without the consent of the holder of each outstanding Debt Security of
the series affected. (Section 513 of the Senior Indenture & Section 6.6 of the
Subordinated Indenture.)
In addition, under certain circumstances, the holders of a majority of the
outstanding Junior Subordinated Debentures of any series may waive in advance,
for that series, our compliance with certain restrictive provisions of the
Subordinated Indenture under which those Junior Subordinated Debentures were
issued. (Section 4.7 of the Subordinated Indenture.)
Concerning the Trustee
The Chase Manhattan Bank is the Subordinated Indenture Trustee and the
Trustee under the Senior Indenture. We and certain of our affiliates maintain
deposit accounts and banking relationships with The Chase Manhattan Bank. The
Chase
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Manhattan Bank also serves as trustee under other indentures pursuant to which
securities of ours and of certain of our affiliates are outstanding. It has
purchased, and is likely to purchase in the future, our securities and
securities of our affiliates.
The Trustee will perform only those duties that are specifically set forth in
the Indentures unless an event of default under an Indenture occurs and is
continuing. The Trustee is under no obligation to exercise any of its powers
under the Indentures at the request of any holder of Debt Securities unless
that holder offers reasonable indemnity to the Trustee against the costs,
expenses and liabilities which it might incur as a result. (Section 601 of the
Senior Indenture & Section 7.1 of the Subordinated Indenture.)
The Trustee administers its corporate trust business at 450 West 33rd Street,
New York, New York 10001 (Attention: Capital Markets Fiduciary Services).
ADDITIONAL TERMS OF SENIOR DEBT SECURITIES
Repayment at the Option of the Holder; Repurchases by the Company
We must repay the Senior Debt Securities at the option of the Holders prior
to the Stated Maturity Date only if specified in the applicable prospectus
supplement. Unless otherwise provided in the prospectus supplement, the Senior
Debt Securities subject to repayment at the option of the Holder will be
subject to repayment:
. on the specified Repayment Dates; and
. at a repayment price equal to 100% of the unpaid principal amount to be
repaid, together with unpaid interest accrued to the Repayment Date. (Section
1302 of the Senior Indenture.)
For any Senior Debt Security to be repaid, the Trustee must receive, at its
office maintained for that purpose in the Borough of Manhattan, New York City
not more than 60 nor less than 30 calendar days prior to the date of repayment:
. in the case of a certificated Senior Debt Security, the certificated Senior
Debt Security and the form in the Senior Debt Security entitled Option of
Holder to Elect Purchase duly completed; or
. in the case of a book-entry Senior Debt Security, instructions to that effect
from the beneficial owner to the securities depositary and forwarded by the
securities depositary. Exercise of the repayment option by the Holder will be
irrevocable. (Section 1303 of the Senior Indenture.)
Only the securities depositary may exercise the repayment option in respect
of beneficial interests in the book-entry Senior Debt Securities. Accordingly,
beneficial owners that desire repayment in respect of all or any portion of
their beneficial interests must instruct the participants through which they
own their interests to direct the securities depositary to exercise the
repayment option on their behalf. All instructions given to participants from
beneficial owners relating to the option to elect repayment will be
irrevocable. In addition, at the time the instructions are given, each
beneficial owner will cause the participant through which it owns its interest
to transfer its interest in the book-entry Senior Debt Securites or the global
certificate representing the related book-entry Senior Debt Securities, on the
securities depositary's records, to the Trustee. See DESCRIPTION OF THE DEBT
SECURITIES--GLOBAL SECURITIES.
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Defeasance
We will be discharged from our obligations on the Senior Debt Securities of
any series at any time if we deposit with the Trustee sufficient cash or
government securities to pay the principal, interest, any premium and any other
sums due to the stated maturity date or a redemption date of the Senior Debt
Securities of the series. If this happens, the holders of the Senior Debt
Securities of the series will not be entitled to the benefits of the Senior
Indenture except for registration of transfer and exchange of Senior Debt
Securities and replacement of lost, stolen or mutilated Senior Debt Securities.
(Section 402 of the Senior Indenture.)
Under federal income tax law as of the date of this prospectus, a discharge
may be treated as an exchange of the related Senior Debt Securities. Each
holder might be required to recognize gain or loss equal to the difference
between the holder's cost or other tax basis for the Senior Debt Securities and
the value of the holder's interest in the trust. Holders might be required to
include as income a different amount than would be includable without the
discharge. We urge prospective investors to consult their own tax advisers as
to the consequences of a discharge, including the applicability and effect of
tax laws other than the federal income tax law.
ADDITIONAL TERMS OF THE JUNIOR SUBORDINATED DEBENTURES
Additional Covenants Applicable to Junior Subordinated Debentures
Under the Subordinated Indenture, we will:
. maintain 100% ownership of any Trust to which the Junior Subordinated
Debentures have been issued while the Junior Subordinated Debentures remain
outstanding; and
. pay to any Trust to which the Junior Subordinated Debentures have been issued
any taxes, duties, assessments or governmental charges of whatever nature
(other than withholding taxes) imposed by the United States or any other
taxing authority on that Trust, so that the net amounts received and retained
by that Trust (after paying any taxes, duties, assessments or other
governmental charges) will be not less than the Trust would have received had
no such taxes, duties, assessments or other governmental charges been
imposed. (Sections 4.8 & 4.9 of the Subordinated Indenture.)
Option to Extend Interest Payment Period
We can defer interest payments by extending the interest payment period for
the number of consecutive extension periods specified in the applicable
prospectus supplement (each, an Extension Period). Other details regarding the
Extension Period will also be specified in the applicable prospectus
supplement. No Extension Period may extend beyond the maturity of the Junior
Subordinated Debentures. At the end of the Extension Period(s), we will pay all
interest then accrued and unpaid, together with interest compounded quarterly
at the rate for the Junior Subordinated Debentures, to the extent permitted by
applicable law. (Section 2.10 of the Subordinated Indenture.)
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During any Extension Period, we will not make distributions related to our
capital stock, including dividends, redemptions, repurchases, liquidation
payments, or guarantee payments. Also we will not make any payments, redeem or
repurchase any debt securities of equal or junior rank to the Junior
Subordinated Debentures or make any guarantee payments on any such debt
securities. We may, however, make the following types of distributions:
.dividends paid in common stock;
. dividends in connection with the implementation of a shareholder rights plan;
. payments to a trust holding securities of the same series under a guarantee;
or
. repurchases, redemptions or other acquisitions of shares of our capital stock
in connection with any employment contract, benefit plan or other similar
arrangement with or for the benefit of employees, officers, directors or
consultants.
Subordination
Each series of Junior Subordinated Debentures will be subordinate and junior
in right of payment, to the extent set forth in the Subordinated Indenture, to
all Senior Indebtedness as defined below. If:
. we make a payment or distribution of any of our assets to creditors upon our
dissolution, winding-up, liquidation or reorganization, whether in
bankruptcy, insolvency or otherwise;
. a default beyond any grace period has occurred and is continuing with respect
to the payment of principal, interest or any other monetary amounts due and
payable on any Senior Indebtedness; or
. the maturity of any Senior Indebtedness has been accelerated because of a
default on that Senior Indebtedness,
then the holders of Senior Indebtedness generally will have the right to
receive payment, in the case of the first instance, of all amounts due or to
become due upon that Senior Indebtedness, and, in the case of the second and
third instances, of all amounts due on that Senior Indebtedness, or we will
make provision for those payments, before the holders of any Junior
Subordinated Debentures have the right to receive any payments of principal or
interest on their Junior Subordinated Debentures. (Sections 14.1 and 14.9 of
the Subordinated Indenture.)
Senior Indebtedness means, with respect to any series of Junior Subordinated
Debentures, the principal, premium, interest and any other payment in respect
of any of the following:
. all of our indebtedness for borrowed or purchased money that is evidenced by
notes, debentures, bonds or other written instruments;
. our obligations for reimbursement under letters of credit, banker's
acceptances, security purchase facilities or similar facilities issued for
our account;
. any of our other indebtedness or obligations with respect to commodity
contracts, interest rate commodity and currency swap agreements and other
similar agreements or arrangements; and
. all indebtedness of others of the kinds described in the preceding categories
which we have assumed or guaranteed.
Senior Indebtedness will not include our obligations to trade creditors or
indebtedness to our subsidiaries. (Section 1.1 of the Subordinated Indenture.)
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Senior Indebtedness will be entitled to the benefits of the subordination
provisions in the Subordinated Indenture irrespective of the amendment,
modification or waiver of any term of the Senior Indebtedness. We may not
amend the Subordinated Indenture to change the subordination of any
outstanding Junior Subordinated Debentures without the consent of each holder
of Senior Indebtedness that the amendment would adversely affect. (Sections
10.2 & 14.7 of the Subordinated Indenture.)
The Subordinated Indenture does not limit the amount of Senior Indebtedness
that we may issue.
DESCRIPTION OF THE TRUST PREFERRED SECURITIES
The following is a summary of the principal terms of the Trust Preferred
Securities. The form of amended trust agreement is filed as an exhibit to the
registration statement of which this prospectus forms a part, or is
incorporated by reference. The terms of the Trust Preferred Securities will
include those stated in the amended trust agreement and those made part of the
amended trust agreement by the Trust Indenture Act.
General
Each Trust will exist until terminated as provided in its amended trust
agreement. Except under certain circumstances, we will be entitled to appoint,
remove, or replace trustees, who will conduct the business and affairs of each
Trust. The trustees of each Trust will consist of:
. two employees, officers or affiliates of the Company as Administrative
Trustees;
. a financial institution unaffiliated with us that will act as property
trustee and as indenture trustee for purposes of the Trust
Indenture Act, under the terms set forth in a prospectus supplement (the
Property Trustee); and
. one trustee with its principal place of business or who resides in the State
of Delaware and who will act under the terms set forth in a prospectus
supplement. (Sections 6.1 through 6.5 of the Amended Trust Agreement.)
The amended trust agreement will authorize the Administrative Trustees to
issue, on behalf of the applicable Trust, two classes of trust securities,
Trust Preferred Securities and trust common securities, each of which will
have the terms described in this prospectus and in the applicable prospectus
supplement. We will own all of the trust common securities. The trust common
securities will rank equally in right of payment, and payments will be made on
the trust common securities, proportionately with the trust preferred
securities. However, if an event of default occurs and is continuing under the
amended trust agreement, the rights of the holders of the trust common
securities to payment for distributions and payments upon liquidation,
redemption and otherwise, will be subordinated to the rights of the holders of
the trust preferred securities. We will acquire, directly or indirectly, trust
common securities in a total liquidation amount of approximately 3% of the
total capital of each of the Trusts. (Sections 3.6, 5.1, 5.2 and 7.1 of the
Amended Trust Agreement.)
The proceeds from the sale of the Trust Preferred Securities will be used by
the applicable Trust to purchase our Junior Subordinated Debentures. These
Junior Subordinated Debentures will be held in trust by the Property Trustee
for the benefit
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of the holders of the trust securities. We will guarantee the payments of
distributions and payments on redemption or liquidation with respect to the
Trust Preferred Securities, but only to the extent the Trust has funds
available to make those payments and has not made the payments. See DESCRIPTION
OF THE GUARANTEES.
The assets of the Trust available for distribution to the holders of Trust
Preferred Securities will be limited to payments from us under the Junior
Subordinated Debentures held by the Trust. If we fail to make a payment on the
Junior Subordinated Debentures, the Trust will not have sufficient funds to
make related payments, including distributions, on its Trust Preferred
Securities.
The Guarantee, when taken together with our obligations under the Junior
Subordinated Debentures, the Subordinated Indenture and the amended trust
agreement, will provide a full and unconditional guarantee of amounts due on
the Trust Preferred Securities issued by the Trust.
The Trust Preferred Securities will have the terms, including distributions,
redemption, voting, liquidation rights and other preferred, deferred or other
special rights or restrictions that will be described in the amended trust
agreement or made part of the amended trust agreement by the Trust Indenture
Act or the Delaware Business Trust Act. The terms of the Trust Preferred
Securities will mirror the terms of the Junior Subordinated Debentures held by
the Trust. In other words, the distribution rate and the distribution payment
dates and other payment dates for the Trust Preferred Securities will
correspond to the interest rate and interest payment dates and other payment
dates on the Junior Subordinated Debentures. Holders of Trust Preferred
Securities have no preemptive or similar rights. (Section 7.1 of the Amended
Trust Agreement.)
Provisions of a Particular Series
Each Trust may issue only one series of Trust Preferred Securities. The
applicable prospectus supplement will set forth the principal terms of the
Trust Preferred Securities that will be offered, including:
. the name of the Trust Preferred Securities;
. the liquidation amount and number of Trust Preferred Securities issued;
. the annual distribution rate(s) or method of determining such rate(s), the
payment date(s) and the record dates used to determine the holders who are to
receive distributions;
. the date from which distributions will be cumulative;
. the optional redemption provisions, if any, including the prices, time
periods and other terms and conditions on which the Trust Preferred
Securities will be purchased or redeemed, in whole or in part;
. the terms and conditions, if any, upon which the Junior Subordinated
Debentures and the related Guarantee may be distributed to holders of those
Trust Preferred Securities;
. any securities exchange on which the Trust Preferred Securities will be
listed;
. whether the Trust Preferred Securities are to be issued in book-entry form
and represented by one or more global certificates, and if so, the depository
for
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those global certificates and the specific terms of the depositary
arrangements; and
. any other relevant rights, preferences, privileges, limitations or
restrictions of the Trust Preferred Securities. (Article 7 of the Amended
Trust Agreement.)
The interest rate and interest and other payment dates of each series of
Junior Subordinated Debentures issued to a Trust will correspond to the rate at
which distributions will be paid and the distribution and other payment dates
of the Trust Preferred Securities of that Trust.
Extensions
We have the right under the Subordinated Indenture to defer payments of
interest on the Junior Subordinated Debentures by extending the interest
payment period from time to time on the Junior Subordinated Debentures. The
Administrative Trustees will give the holders of the Trust Preferred Securities
notice of any Extension Period upon their receipt of notice from us. If
distributions are deferred, the deferred distributions and accrued interest
will be paid to holders of record of the Trust Preferred Securities as they
appear on the books and records of the Trust on the record date next following
the termination of such deferral period. See DESCRIPTION OF THE JUNIOR
SUBORDINATED DEBENTURES--OPTION TO EXTEND INTEREST PAYMENT PERIOD.
Distributions on the Trust Preferred Securities will be made on the dates
payable to the extent that the Trust has funds available for the payment of
distributions in the Property Account. The Trust's funds available for
distribution to the holders of the trust securities will be limited to payments
received from us on the Junior Subordinated Debentures. We have guaranteed the
payment of distributions out of monies held by the Trust to the extent set
forth under DESCRIPTION OF THE GUARANTEES.
Distributions on the Trust Preferred Securities will be payable to the
holders named on the securities register of the Trust at the close of business
on the relevant record dates, which, as long as the Trust Preferred Securities
remain in book-entry only form, will be one business day prior to the relevant
payment dates. Distributions will be paid through the Property Trustee who will
hold amounts received in respect of the Junior Subordinated Debentures in the
Property Account for the benefit of the holders of the trust securities. In the
event that the Trust Preferred Securities do not continue to remain in book-
entry only form, the relevant record dates will conform to the rules of any
securities exchange on which the Trust Preferred Securities are listed and, if
none, the Administrative Trustees will have the right to select relevant record
dates, which will be more than 14 days but less than 60 days prior to the
relevant payment dates. In the event that any date on which distributions are
to be made on the Trust Preferred Securities is not a business day, then
payment of the distributions payable on that date will be made on the next
succeeding day which is a business day and without any interest or other
payment in respect of that delay, except that, if that business day is in the
next succeeding calendar year, the payment will be made on the immediately
preceding business day, in each case with the same force and effect as if made
on the record date. (Section 7.2 of the Amended Trust Agreement.)
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Mandatory Redemption of Trust Preferred Securities
The Trust Preferred Securities have no stated maturity date, but will be
redeemed upon the maturity of the Junior Subordinated Debentures or to the
extent the Junior Subordinated Debentures are redeemed prior to maturity. The
Junior Subordinated Debentures will mature on the date specified in the
applicable prospectus supplement and may be redeemed at any time, in whole but
not in part, in certain circumstances upon the occurrence of a Tax Event or an
Investment Company Event as described under SPECIAL EVENT REDEMPTION.
Upon the maturity of the Junior Subordinated Debentures, the proceeds of
their repayment will simultaneously be applied to redeem all the outstanding
trust securities at the Redemption Price. Upon the redemption of the Junior
Subordinated Debentures, either at our option or as a result of a Tax Event or
an Investment Company Event, the proceeds from the redemption will
simultaneously be applied to redeem trust securities having a total liquidation
amount equal to the total principal amount of the Junior Subordinated
Debentures so redeemed at the redemption price; provided, that holders of trust
securities will be given not less than 20 nor more than 60 days' notice of the
redemption. In the event that fewer than all of the outstanding trust
securities are to be redeemed, the trust securities will be redeemed
proportionately. (Section 7.3 of the Amended Trust Agreement.)
Special Event Redemption
Both a Tax Event and an Investment Company Act Event constitute Special
Events for purposes of the redemption provisions described in the preceding
paragraph.
A Tax Event means that the Administrative Trustees have received an opinion
of independent tax counsel experienced in those matters to the effect that, as
a result of:
. any amendment to, change or announced proposed change in, the laws or
regulations of the United States or any of its political subdivisions or
taxing authorities, or
. any official administrative pronouncement, action or judicial decision
interpreting or applying those laws or regulations, which amendment or change
becomes effective or proposed change, pronouncement, action or decision is
announced on or after the date
. the Trust Preferred Securities are issued and sold there is more than an
insubstantial risk that:
. the Trust is or within 90 days would be subject to U.S. federal income tax
with respect to income accrued or received on the Junior Subordinated
Debentures,
. interest payable to the Trust on the Junior Subordinated Debentures is not or
within 90 days would not be deductible, in whole or in part, by us for U.S.
federal income tax purposes, or
. the Trust is or within 90 days would be subject to a material amount of other
taxes, duties or other governmental charges.
Investment Company Event means that the Administrative Trustees have received
an opinion of a nationally recognized independent counsel to the effect that,
as a result of an amendment to or change in the Investment Company Act or
regulations
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thereunder on or after the date the Trust Preferred Securities are issued and
sold, there is more than an insubstantial risk that the Trust is or will be
considered an investment company and be required to be registered under the
Investment Company Act. (Section 1.1 of the Amended Trust Agreement.)
Redemption Procedures
The Trust may not redeem fewer than all the outstanding trust securities
unless all accrued and unpaid distributions have been paid on all trust
securities for all distribution periods terminating on or before the date of
redemption. In the event that fewer than all of the outstanding trust
securities are to be redeemed, the trust securities will be redeemed
proportionately.
If the Trust gives a notice of redemption in respect of the trust securities
(which notice will be irrevocable), then, by 12:00 noon, New York City time, on
the redemption date, and if we have paid to the Property Trustee a sufficient
amount of cash in connection with the related redemption or maturity of the
Junior Subordinated Debentures, the Property Trustee will irrevocably deposit
with the depositary funds sufficient to pay the applicable redemption price and
will give the depositary irrevocable instructions and authority to pay the
redemption price to the holders of the Trust Preferred Securities, and the
paying agent will pay the applicable redemption price to the holders of the
trust common securities by check. If notice of redemption has been given and
funds deposited as required, then, immediately prior to the close of business
on the date of the deposit, distributions will cease to accrue and all rights
of holders of Trust Preferred Securities called for redemption will cease,
except the right of the holders of the Trust Preferred Securities to receive
the redemption price but without interest on the redemption price. In the event
that any date fixed for redemption of Trust Preferred Securities is not a
business day, then payment of the redemption price payable on that date will be
made on the next succeeding day that is a business day, without any interest or
other payment in respect of any such delay, except that, if that business day
falls in the next calendar year, payment will be made on the immediately
preceding business day. In the event that payment of the redemption price in
respect of Trust Preferred Securities is improperly withheld or refused and not
paid either by the Trust or by us under the Guarantee, distributions on the
Trust Preferred Securities will continue to accrue at the then applicable rate
from the original redemption date to the date of payment, in which case the
actual payment date will be considered the date fixed for redemption for
purposes of calculating the redemption price.
Subject to the foregoing and applicable law, including, without limitation,
U.S. federal securities laws, we or our subsidiaries may at any time, and from
time to time, purchase outstanding Trust Preferred Securities by tender, in the
open market or by private agreement. (Section 7.4 of the Amended Trust
Agreement.)
Conversion or Exchange Rights
The terms on which the Trust Preferred Securities are convertible into or
exchangeable for common stock or our other securities will be contained in the
applicable prospectus supplement. Those terms will include provisions as to
whether conversion or exchange is mandatory, at the
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option of the holder or at our option, and may include provisions under which
the number of shares of common stock or our other securities to be received by
the holders of Trust Preferred Securities would be subject to adjustment.
Distribution of the Junior Subordinated Debentures
We will have the right at any time to dissolve the Trust and, after
satisfaction of the liabilities of creditors of the Trust as provided by
applicable law, to cause Junior Subordinated Debentures to be distributed to
the holders of the Trust Preferred Securities in a total stated principal
amount equal to the total stated liquidation amount of the Trust Preferred
Securities then outstanding. Prior to any such dissolution, we will obtain any
required regulatory approvals. The right to dissolve the trust and distribute
the Junior Subordinated Debentures will be conditioned on our receipt of an
opinion rendered by an independent tax counsel that the distribution would not
result in the recognition of gain or loss for federal income tax purposes by
the holders. (Section 8.1 of the Amended Trust Agreement.)
Liquidation Distribution Upon Dissolution
The amended trust agreement will state that the Trust will be dissolved:
.upon our bankruptcy;
.upon the filing of a certificate of dissolution or its equivalent with
respect to us;
.upon the filing of a certificate of cancellation with respect to the Trust
after obtaining the consent of at least a majority in liquidation amount of
the Trust Preferred Securities, voting together as a single class;
.90 days after the revocation of our charter, but only if the charter is not
reinstated during that 90-day period;
.upon the distribution of the related Junior Subordinated Debentures directly
to the holders of the trust securities;
.upon the redemption of all of the trust securities; or
.upon entry of a court order for the dissolution of us or the Trust. (Section
8.1 of the Amended Trust Agreement.)
In the event of a dissolution, after the Trust pays all amounts owed to
creditors, the holders of the Trust Preferred Securities will be entitled to
receive:
.cash equal to the total liquidation amount of each Trust Preferred Security
specified in an accompanying prospectus supplement, plus accumulated and
unpaid distributions to the date of payment, or
.Junior Subordinated Debentures in a total principal amount equal to the total
liquidation amount of the Trust Preferred Securities.
If the Trust cannot pay the full amount due on its trust securities because
insufficient assets are available for payment, then the amounts payable by the
Trust on its trust securities will be paid proportionately. However, if an
event of default under the related amended trust agreement occurs, the total
amounts due on the Trust Preferred Securities will be paid before any
distribution on the trust common securities. Under certain circumstances
involving the dissolution of a Trust, subject to obtaining any required
regulatory approval, Junior Subordinated Debentures
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will be distributed to the holders of the trust securities in liquidation of
that Trust. (Section 8.2 of the Amended Trust Agreement.)
Trust Enforcement Events
An event of default under the Subordinated Indenture relating to the Junior
Subordinated Debentures will be an event of default under the amended trust
agreement (a Trust Enforcement Event). See DESCRIPTION OF THE JUNIOR
SUBORDINATED DEBENTURES--EVENTS OF DEFAULT.
In addition, the voluntary or involuntary dissolution, winding up or
termination of the Trust is also a Trust Enforcement Event, except in
connection with:
. the distribution of the Junior Subordinated Debentures to holders of the
trust securities of the Trust,
. the redemption of all of the trust securities of the Trust, and
. mergers, consolidations or amalgamations permitted by the amended trust
agreement of the Trust.
Under the amended trust agreement, the holder of the trust common securities
will be deemed to have waived any Trust Enforcement Event with respect to the
trust common securities until all Trust Enforcement Events with respect to the
Trust Preferred Securities have been cured, waived or otherwise eliminated.
Until all Trust Enforcement Events with respect to the Trust Preferred
Securities have been so cured, waived, or otherwise eliminated, the Property
Trustee will be deemed to be acting solely on behalf of the holders of the
Trust Preferred Securities and only the holders of the Trust Preferred
Securities will have the right to direct the Property Trustee with respect to
certain matters under the amended trust agreement and the Subordinated
Indenture. In the event that any Trust Enforcement Event with respect to the
Trust Preferred Securities is waived by the holders of the Trust Preferred
Securities as provided in the amended trust agreement, under the amended trust
agreement the holders of trust common securities have agreed that the waiver
also constitutes a waiver of the Trust Enforcement Event with respect to the
trust common securities for all purposes under the amended trust agreement
without any further act, vote or consent of the holders of trust common
securities. (Section 2.6 of the Amended Trust Agreement.)
We and the Administrative Trustees must file annually with the Property
Trustee a certificate evidencing compliance with all the applicable conditions
and covenants under the amended trust agreement. (Section 2.4 of the Amended
Trust Agreement.)
Upon the occurrence of a Trust Enforcement Event the Property Trustee, as the
sole holder of the Junior Subordinated Debentures, will have the right under
the Subordinated Indenture to declare the principal of, interest and premium,
if any, on the Junior Subordinated Debentures to be immediately due and
payable.
If a Property Trustee fails to enforce its rights under the amended trust
agreement or the Subordinated Indenture to the fullest extent permitted by law
and subject to the terms of the amended trust agreement and the Subordinated
Indenture, any holder of Trust Preferred Securities may sue us, or seek other
remedies, to
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enforce the Property Trustee's rights under the amended trust agreement or the
Subordinated Indenture without first instituting a legal proceeding against the
Property Trustee or any other person. If a Trust Enforcement Event occurs and
is continuing as a result of our failure to pay principal of or interest or
premium, if any, on the Junior Subordinated Debentures when payable, then a
holder of the Trust Preferred Securities may directly sue us or seek other
remedies, to collect its proportionate share of payments owned. See
RELATIONSHIP AMONG THE TRUST PREFERRED SECURITIES, THE GUARANTEE AND THE JUNIOR
SUBORDINATED DEBENTURES HELD BY THE TRUST.
Removal and Replacement of Trustees
Only the holders of trust common securities have the right to remove or
replace the trustees of the Trust, except that while an event of default in
respect of the Junior Subordinated Debentures has occurred or is continuing,
the holders of a majority of the Trust Preferred Securities will have this
right. The resignation or removal of any trustee and the appointment of a
successor trustee will be effective only on the acceptance of appointment by
the successor trustee in accordance with the provisions of the amended trust
agreement. (Section 6.6 of the Amended Trust Agreement.)
Mergers, Consolidations or Amalgamations of the Trust
The Trust may not 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 corporation or other body (each, a Merger Event), except
as described below. The Trust may, with the consent of a majority of its
Administrative Trustees and without the consent of the holders of its trust
securities, consolidate, amalgamate, merge with or into, or be replaced by
another trust, provided that:
. the successor entity either
. assumes all of the obligations of the Trust relating to its trust
securities, or
. substitutes other securities for the trust securities that are
substantially similar to the trust securities, so long as the successor
securities rank the same as the trust securities for distributions and
payments upon liquidation, redemption and otherwise;
. we acknowledge a trustee of the successor entity who has the same powers and
duties as the Property Trustee of the Trust, as the holder of the Junior
Subordinated Debentures;
. the Trust Preferred Securities are listed, or any successor securities will
be listed, upon notice of issuance, on the same securities exchange or other
organization that the Trust Preferred Securities are then listed;
. the Merger Event does not cause the Trust Preferred Securities or successor
securities to be downgraded by any nationally recognized rating agency;
. the Merger Event does not adversely affect the rights, preferences and
privileges of the holders of the trust securities or successor securities in
any material way, other than with respect to any dilution of the holders'
interest in the new entity;
. the successor entity has a purpose identical to that of the Trust;
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. prior to the Merger Event, we have received an opinion of counsel from a
nationally recognized law firm stating that
. the Merger Event does not adversely affect the rights of the holders of the
Trust Preferred Securities or any successor securities in any material way,
other than with respect to any dilution of the holders' interest in the new
entity, and
. following the Merger Event, neither the Trust nor the successor entity will
be required to register as an investment company under the Investment
Company Act; and
. we guarantee the obligations of the successor entity under the successor
securities in the same manner as in the Guarantee.
In addition, unless all of the holders of the Trust Preferred Securities and
trust common securities approve otherwise, the Trust will not consolidate,
amalgamate, merge with or into, or be replaced by any other entity or permit
any other entity to consolidate, amalgamate, merge with or into, or replace it,
if, in the opinion of a nationally recognized tax counsel experienced in such
matters, the transaction would cause the Trust or the successor entity to be
classified other than as a grantor trust for U.S. federal income tax purposes.
(Section 3.15 of the Amended Trust Agreement.)
Voting Rights; Amendment of Trust Agreement
The holders of Trust Preferred Securities have no voting rights except as
discussed under DESCRIPTION OF TRUST SECURITIES--MERGERS, CONSOLIDATIONS OR
AMALGAMATIONS OF THE TRUST AND DESCRIPTION OF THE GUARANTEES--AMENDMENTS, and
as otherwise required by law and the amended trust agreement.
The amended trust agreement may be amended if approved by a majority of the
Administrative Trustees of the Trust. However, if any proposed amendment
provides for, or the Administrative Trustees otherwise propose to effect,
. any action that would adversely affect the powers, preferences or special
rights of the trust securities, whether by way of amendment to the amended
trust agreement or otherwise, or
. the dissolution, winding-up or termination of the Trust other than under the
terms of its amended trust agreement,
then the holders of the Trust Preferred Securities as a single class will be
entitled to vote on the amendment or proposal. In that case, the amendment or
proposal will only be effective if approved by at least a majority in
liquidation amount of the Trust Preferred Securities affected by the amendment
or proposal.
No amendment may be made to an amended trust agreement if that amendment
would:
. cause the Trust to be characterized as other than a grantor trust for U.S.
federal income tax purposes;
. reduce or otherwise adversely affect the powers of the Property Trustee; or
. cause the Trust to be deemed to be an investment company which is required to
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be registered under the Investment Company Act. (Section 11.1 of the Amended
Trust Agreement.)
The holders of a majority of the total liquidation amount of the Trust
Preferred Securities have the right to:
. direct the time, method and place of conducting any proceeding for any remedy
available to the Property Trustee; or
. direct the exercise of any trust or power conferred upon the Property Trustee
under the amended trust agreement, including the right to direct the Property
Trustee, as the holder of the Junior Subordinated Debentures, to
. exercise the remedies available under the Subordinated Indenture with
respect to the Junior Subordinated Debentures,
. waive any event of default under the Subordinated Indenture that is
waivable, or
. cancel an acceleration of the principal of the Junior Subordinated
Debentures.
In addition, before taking any of the foregoing actions, the Property Trustee
must obtain an opinion of counsel stating that, as a result of that action, the
Trust will continue to be classified as a grantor trust for U.S. federal income
tax purposes. (Section 7.5 of the Amended Trust Agreement.)
As described in the form of amended trust agreement, the Property Trustee may
hold a meeting to have holders of Trust Preferred Securities vote on a change
or have them approve a change by written consent.
If a vote by the holders of Trust Preferred Securities is taken or a consent
is obtained, any Trust Preferred Securities owned by us or any of our
affiliates will, for purposes of the vote or consent, be treated as if they
were not outstanding, which will have the following consequences:
. we and any of our affiliates will not be able to vote on or consent to
matters requiring the vote or consent of holders of Trust Preferred
Securities; and
. any Trust Preferred Securities owned by us or any of our affiliates will not
be counted in determining whether the required percentage of votes or
consents has been obtained. Section 7.5 of the Amended Trust Agreement.)
Information Concerning the Property Trustee
For matters relating to compliance with the Trust Indenture Act, the Property
Trustee will have all of the duties and responsibilities of an indenture
trustee under the Trust Indenture Act. The Property Trustee, other than during
the occurrence and continuance of a Trust Enforcement Event, undertakes to
perform only the duties that are specifically described in the amended trust
agreement and, upon a Trust Enforcement Event, must use 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 given it by the applicable amended
trust agreement at the request of any holder of Trust Preferred Securities
unless it is offered reasonable security or indemnity against the costs,
expenses and liabilities that it might incur. However, the holders of the Trust
Preferred
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Securities will not be required to offer such an indemnity where the holders,
by exercising their voting rights, direct the Property Trustee to take any
action following a Trust Enforcement Event. (Section 3.9 of the Amended Trust
Agreement.)
Information Concerning the Administrative Trustees
The Administrative Trustees are authorized and directed to conduct the
affairs of and to operate the Trust in a way that:
. will not cause it to be deemed to be an investment company required to be
registered under the Investment Company Act;
. will cause it to be classified as a grantor trust for U.S. federal income tax
purposes; and
. will cause the Junior Subordinated Debentures it holds to be treated as our
indebtedness for U.S. federal income tax purposes.
We and the Administrative Trustees are authorized to take any action, so long
as it is consistent with applicable law or the certificate of trust or amended
trust agreement, that we and the Administrative Trustees determine to be
necessary or desirable for those purposes. (Section 3.6 of the Amended Trust
Agreement.)
DESCRIPTION OF THE GUARANTEES
We will execute the Guarantees from time to time for the benefit of the
holders of the Trust Preferred Securities of the respective Trusts.
The Chase Manhattan Bank will act as Guarantee Trustee under each Guarantee.
The Guarantee Trustee will hold each Guarantee for the benefit of the holders
of the Trust Preferred Securities to which it relates.
The following description of the Guarantees is only a summary. The form of
Guarantee is an exhibit to the registration statement.
General
We will irrevocably and unconditionally agree under each Guarantee to pay the
Guarantee Payments that are defined below, to the extent specified in that
Guarantee, to the holders of the Trust Preferred Securities to which the
Guarantee relates, to the extent that the Guarantee Payments are not paid by or
on behalf of the related Trust. We are required to pay the Guarantee Payments
to the extent specified in the relevant Guarantee regardless of any defense,
right of set-off or counterclaim that we may have or may assert against any
person. (Section 5.1 of the Guarantee.)
The following payments and distributions on the Trust Preferred Securities of
a Trust are Guarantee Payments:
. any accrued and unpaid distributions required to be paid on the Trust
Preferred Securities of the Trust, but only to the extent that the Trust has
funds legally and immediately available for those distributions;
. the redemption price for any Trust Preferred Securities that the Trust calls
for redemption, including all accrued and unpaid distributions to the
redemption date, but only to the extent that the Trust
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has funds legally and immediately available for the payment; and
. upon a dissolution, winding-up or termination of the Trust, other than in
connection with the distribution of Junior Subordinated Debentures to the
holders of Trust Securities of the Trust or the redemption of all the Trust
Preferred Securities of the Trust, the lesser of:
. the sum of the liquidation amount and all accrued and unpaid distributions on
the Trust Preferred Securities of the Trust to the payment date, to the
extent that the Trust has funds legally and immediately available for the
payment; and
. the amount of assets of the Trust remaining available for distribution to
holders of the Trust Preferred Securities of the Trust in liquidation of the
Trust. (Section 1.1 of the Guarantee.)
We may satisfy our obligation to make a Guarantee Payment by making that
payment directly to the holders of the related Trust Preferred Securities or by
causing the Trust to make the payment to those holders. (Section 5.1 of the
Guarantee.)
Each Guarantee will be a full and unconditional guarantee, subject to certain
subordination provisions, of the Guarantee Payments with respect to the related
Trust Preferred Securities from the time of issuance of those Trust Preferred
Securities, except that the Guarantee will only apply to the payment of
distributions and other payments on the Trust Preferred Securities when the
Trust has sufficient funds legally and immediately available to make those
distributions or other payments.
If we do not make the required payments on the Junior Subordinated Debentures
that the Property Trustee holds under a Trust, that Trust will not make the
related payments on its Trust Preferred Securities.
Subordination
Our obligations under each Guarantee will be unsecured obligations of the
Company. Those obligations will rank:
. subordinate and junior in right of payment to all of our other liabilities,
other than obligations or liabilities that rank equal in priority or
subordinate by their terms;
. equal in priority with the Junior Subordinated Debentures that we may issue
and similar guarantees; and
. senior to our common stock. (Section 6.2 of the Guarantee.)
We have $257.7 million in Junior Subordinated Debentures outstanding that
will rank equal in priority with the Guarantees. We have common stock
outstanding that will rank junior to the Guarantees.
Each Guarantee will be a guarantee of payment and not of collection. This
means that the guaranteed party may institute a legal proceeding directly
against us, as guarantor, to enforce its rights under the Guarantee without
first instituting a legal proceeding against any other person or entity.
(Section 5.4 of the Guarantee.)
The terms of the Trust Preferred Securities will provide that each holder of
the Trust Preferred Securities, by accepting those Trust Preferred Securities,
agrees to the subordination provisions and other terms of the related
Guarantee.
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Amendments
We may amend each Guarantee without the consent of any holder of the Trust
Preferred Securities to which that Guarantee relates if the amendment does not
materially and adversely affect the rights of those holders. We may otherwise
amend each Guarantee with the approval of the holders of at least 50% of the
outstanding Trust Preferred Securities to which that Guarantee relates.
(Section 9.2 of the Guarantee.)
Termination
Each Guarantee will terminate and be of no further effect when:
. the redemption price of the Trust Preferred Securities to which the Guarantee
relates is fully paid;
. we distribute the related Junior Subordinated Debentures to the holders of
those Trust Preferred Securities; or
. the amounts payable upon liquidation of the related Trust are fully paid.
(Section 7.1 of the Guarantee.)
Each Guarantee will remain in effect or will be reinstated if at any time any
holder of the related Trust Preferred Securities must restore payment of any
sums paid to that holder with respect to those Trust Preferred Securities or
under that Guarantee.
Material Covenants
We will covenant that, so long as any Trust Preferred Securities remain
outstanding, if there is an event of default under the Guarantee or the amended
trust agreement:
. we will not make distributions related to our debt securities that rank
equally with or junior to the Junior Subordinated Debentures, including any
payment of interest, principal or premium, or repayments, repurchases or
redemptions; and
. we will not make distributions related to our capital stock, including
dividends, redemptions, repurchases, liquidation payments, or guarantee
payments. We may, however, make the following types of distributions:
. dividends paid in common stock;
. dividends in connection with the implementation of a shareholder rights
plan;
. payments to a trust holding securities of the same series under a
guarantee; and
. repurchases, redemptions or other acquisitions of shares of our capital
stock in connection with any benefit plan or other similar arrangement with
or for the benefit of employees, officers, directors or consultants.
(Section 6.1 of the Guarantee.)
Because we are a holding company that conducts all of our operations through
our subsidiaries, our ability to meet our obligations under the Guarantees is
dependent on the earnings and cash flows of those subsidiaries and the ability
of those subsidiaries to pay dividends or to advance or repay funds to us. The
Trust, as holder of the Guarantee and the Junior Subordinated Debentures will
generally have a junior position to claims of creditors of our subsidiaries,
including trade creditors, debtholders, secured creditors, taxing authorities,
guarantee holders and any preferred stockholders.
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Events of Default
An event of default will occur under any Guarantee if we fail to perform any
of our payment obligations under that Guarantee. The holders of a majority of
the Trust Preferred Securities of any series may waive any such event of
default and its consequences on behalf of all of the holders of the Trust
Preferred Securities of that series. (Section 2.6 of the Guarantee.) The
Guarantee Trustee is entitled to enforce the Guarantee for the benefit of the
holders of the Trust Preferred Securities of a series if an event of default
occurs under the related Guarantee. (Section 3.1 of the Guarantee.)
The holders of a majority of the Trust Preferred Securities to which a
Guarantee relates have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Guarantee Trustee
with respect to that Guarantee or to direct the exercise of any trust or power
that the Guarantee Trustee holds under that Guarantee. Any holder of the
related Trust Preferred Securities may institute a legal proceeding directly
against us to enforce that holder's rights under the Guarantee without first
instituting a legal proceeding against the Guarantee Trustee or any other
person or entity. (Section 5.4 of the Guarantee.)
Concerning the Guarantee Trustee
The Chase Manhattan Bank is the Guarantee Trustee. It is also the Property
Trustee, the Subordinated Indenture Trustee and the Senior Indenture Trustee.
We and certain of our affiliates maintain deposit accounts and banking
relationships with The Chase Manhattan Bank. The Chase Manhattan Bank also
serves as trustee under other indentures pursuant to which securities of ours
and certain of our affiliates are outstanding.
The Guarantee Trustee will perform only those duties that are specifically
set forth in each Guarantee unless an event of default under the Guarantee
occurs and is continuing. In case an event of default occurs and is continuing,
the Guarantee Trustee will exercise the same degree of care as a prudent
individual would exercise in the conduct of his or her own affairs. (Section
3.1 of the Guarantee.) Subject to those provisions, the Guarantee Trustee is
under no obligation to exercise any of its powers under any Guarantee at the
request of any holder of the related Trust Preferred Securities unless that
holder offers reasonable indemnity to the Guarantee Trustee against the costs,
expenses and liabilities which it might incur as a result. (Section 3.2 of the
Guarantee.)
Agreements as to Expenses and Liabilities
We will enter into an Agreement as to Expenses and Liabilities under each
Trust Agreement. Each Agreement as to Expenses and Liabilities will provide
that we will, with certain exceptions, irrevocably and unconditionally
guarantee the full payment of any indebtedness, expenses or liabilities of the
related Trust to each person or entity to whom that Trust becomes indebted or
liable. The exceptions are the obligations of the Trust to pay to the holders
of the related trust common or other similar interests in that Trust the
amounts due to the holders under the terms of those trust common securities or
those similar interests.
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RELATIONSHIP AMONG THE TRUST PREFERRED SECURITIES, THE GUARANTEE AND THE JUNIOR
SUBORDINATED DEBENTURES HELD BY THE TRUST
We will guarantee payments of distributions and redemption and liquidation
payments due on the Trust Preferred Securities, to the extent the trust has
funds available for the payments, to the extent described under DESCRIPTION OF
THE GUARANTEES. No single document executed by us in connection with the
issuance of the Trust Preferred Securities will provide for our full,
irrevocable and unconditional guarantee of the Trust Preferred Securities. It
is only the combined operation of our obligations under the Guarantee, the
amended trust agreement and the Subordinated Indenture that has the effect of
providing a full, irrevocable and unconditional guarantee of the Trust's
obligations under the Trust Preferred Securities.
As long as we make payments of interest and other payments when due on the
Junior Subordinated Debentures held by the Trust, those payments will be
sufficient to cover the payment of distributions and redemption and liquidation
payments due on the Trust Preferred Securities issued by the Trust, primarily
because:
. the total principal amount of the Junior Subordinated Debentures will be
equal to the sum of the total liquidation amount of the trust securities;
. 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 Preferred Securities;
. we will pay for any and all costs, expenses and liabilities of the Trust
except its obligations under its Trust Preferred Securities; and
. each amended trust agreement will provide that the Trust will not engage in
any activity that is not consistent with the limited purposes of the Trust.
If and to the extent that we do not make payments on the Junior Subordinated
Debentures, the Trust will not have funds available to make payments of
distributions or other amounts due on its Trust Preferred Securities. In those
circumstances, you will not be able to rely upon the Guarantee for payment of
these amounts. Instead, you may directly sue us or seek other remedies to
collect your proportionate share of payments owed. If you sue us to collect
payment, then we will assume your rights as a holder of Trust Preferred
Securities under the amended trust agreement to the extent we make a payment to
you in any such legal action.
ACCOUNTING TREATMENT
Each Trust will be treated as a subsidiary of ours for financial reporting
purposes. Accordingly, our consolidated financial statements will include the
accounts of each Trust. The Trust Preferred Securities, along with other trust
preferred securities that we guarantee on an equivalent basis, will be
presented as a separate line item in our consolidated balance sheets, and
appropriate disclosures about the Trust Preferred Securities, the Guarantees
and the Junior Subordinated Debentures will be included in the notes to the
consolidated financial statements. We will record distributions that each Trust
pays on the Trust Preferred Securities as an expense in our consolidated
statement of income.
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DESCRIPTION OF CAPITAL STOCK
As of September 30, 1999, our authorized capital stock was 520,000,000
shares. Those shares consisted of: (a) 20,000,000 shares of preferred stock,
none of which were outstanding; and (b) 500,000,000 shares of common stock, of
which 190,807,645 shares were outstanding as of October 31, 1999. No holder of
shares of common stock or preferred stock has any preemptive rights.
Common Stock
Listing
Our outstanding shares of common stock are listed on the New York Stock
Exchange under the symbol "D". Any additional common stock we issue will also
be listed on the NYSE.
Dividends
Common shareholders may receive dividends when declared by the Board of
Directors. Dividends may be paid in cash, stock or other form. In certain
cases, common shareholders may not receive dividends until we have satisfied
our obligations to any preferred shareholders. Under certain circumstances, the
Subordinated Indenture also restricts our ability to pay cash dividends.
Fully Paid
All outstanding shares of common stock are fully paid and non-assessable. Any
additional common stock we issue will also be fully paid and non-assessable.
Voting Rights
Each share of common stock is entitled to one vote in the election of
directors and other matters. Common shareholders are not entitled to cumulative
voting rights.
Other Rights
We will notify common shareholders of any shareholders' meetings according to
applicable law. If we liquidate, dissolve or wind up our business, either
voluntarily or not, common shareholders will share equally in the assets
remaining after we pay our creditors and preferred shareholders.
Transfer Agents and Registrars
We, along with Chase Mellon Shareholder Services, are transfer agent and
registrar. You may contact us at the address listed on page 2 or Chase Mellon
located in Ridgefield, New Jersey.
Preferred Stock
The following description of the terms of the preferred stock sets forth
certain general terms and provisions of our authorized preferred stock. If we
offer preferred stock, the specific designations and rights will be described
in the prospectus supplement and a description will be filed with the SEC.
Our Board of Directors can, without approval of shareholders, issue one or
more series of preferred stock. The Board can also determine the number of
shares of each series and the rights, preferences and limitations of each
series including the dividend rights, voting rights, conversion rights,
redemption rights and any liquidation preferences of any wholly unissued series
of preferred stock, the number of shares constituting each series and the terms
and conditions of issue. In some cases, the issuance of preferred stock could
delay a change in control of the Company and make it harder to remove present
management. Under certain circumstances, preferred stock could also restrict
dividend payments to holders of our common stock.
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The preferred stock will, when issued, be fully paid and non-assessable.
Unless otherwise specified in the applicable prospectus supplement, the
preferred stock will rank on a parity in all respects with any outstanding
preferred stock we may have and will have priority over our common stock as to
dividends and distributions of assets. Therefore, the rights of any preferred
stock that may subsequently be issued may limit the rights of the holders of
our common stock and preferred stock.
The transfer agent, registrar, and dividend disbursement agent for a series
of preferred stock will be named in a prospectus supplement. The registrar for
shares of preferred stock will send notices to shareholders of any meetings at
which holders of the preferred stock have the right to elect directors or to
vote on any other matter.
DESCRIPTION OF STOCK PURCHASE CONTRACTS AND STOCK PURCHASE UNITS
We may issue stock purchase contracts, including contracts obligating holders
to purchase from us, and us to sell to the holders, a specified number of
shares of common stock at a future date or dates, which we refer to in this
prospectus as stock purchase contracts. The price per share of common stock and
the number of shares of common stock may be fixed at the time the stock
purchase contracts are issued or may be determined by reference to a specific
formula set forth in the stock purchase contracts. The stock purchase contracts
may be issued separately or as part of units consisting of a stock purchase
contract and beneficial interests in debt securities, trust preferred
securities, preferred stock or debt obligations of third parties, including
U.S. treasury securities, securing the holders' obligations to purchase the
common stock under the stock purchase contracts, which we refer to in this
prospectus as stock purchase units. The stock purchase contracts may require us
to make periodic payments to the holders of the stock purchase units or vice
versa, and these payments may be unsecured or refunded on some basis. The stock
purchase contracts may require holders to secure their obligations under those
contracts in a specified manner.
The applicable prospectus supplement will describe the terms of the stock
purchase contracts or stock purchase units, including, if applicable,
collateral or depositary arrangements, relating to the stock purchase contracts
or stock purchase units.
VIRGINIA STOCK CORPORATION ACT AND THE ARTICLES AND THE BYLAWS
General
We are a Virginia corporation subject to the Virginia Stock Corporation Act
(the Virginia Act). Provisions of the Virginia Act, in addition to provisions
of our Articles of Incorporation and Bylaws, address corporate governance
issues, including the rights of shareholders. Some of these provisions could
hinder management changes while others could have an anti-takeover effect. This
anti-takeover effect may, in some circumstances, reduce the control premium
that might otherwise be reflected in the value of our common stock. If you are
buying this stock as part of a short-term investment strategy, this might be
especially important to you.
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We have summarized the key provisions below. You should read the actual
provisions of our Articles and Bylaws and the Virginia Act that relate to your
individual investment strategy.
Business Combinations
Our Articles require that any merger, share exchange or sale of substantially
all of the assets of the Company be approved by a plurality of the shares
represented at a meeting where a quorum is present. Abstentions and broker non-
votes have the same effect as a vote against the matter.
Section 13.1-725 of the Virginia Act contains several provisions relating to
transactions with interested shareholders. Interested shareholders are holders
of more than 10% of any class of a corporation's outstanding voting shares.
Transactions between a corporation and an interested shareholder are referred
to as affiliated transactions. The Virginia Act requires that material
affiliated transactions must be approved by at least two-thirds of the
shareholders not including the interested shareholder. Affiliated transactions
requiring this two-thirds approval include mergers, share exchanges, material
dispositions of corporate assets, dissolution or any reclassification of the
corporation with its subsidiaries which increases the percentage of voting
shares owned by an interested shareholder by more than five percent.
For three years following the time that a shareholder becomes an interested
shareholder, a Virginia corporation cannot engage in an affiliated transaction
with the interested shareholder without approval of two-thirds of the
disinterested voting shares, and majority approval of disinterested directors.
A disinterested director is a director who was a director on the date on which
an interested shareholder became an interested shareholder and was recommended
for election or elected by a majority of the disinterested directors then on
the board. After three years, the approval of the disinterested directors is no
longer required.
The provisions of the Virginia Act relating to affiliated transactions do not
apply if a majority of disinterested directors approve the acquisition of
shares making a person an interested shareholder.
The Virginia Act permits corporations to opt out of the affiliated
transactions provisions. We have not opted out.
The Virginia Act also contains provisions regulating certain control share
acquisitions, which are transactions causing the voting strength of any person
acquiring beneficial ownership of shares of a public corporation in Virginia to
meet or exceed certain threshold voting percentages (20%, 33 1/3%, or 50%).
Shares acquired in a control share acquisition have no voting rights unless the
voting rights are granted by a majority vote of all outstanding shares other
than those held by the acquiring person or any officer or employee-director of
the corporation. The acquiring person may require that a special meeting of the
shareholders be held to consider the grant of voting rights to the shares
acquired in the control share acquisition.
Our Bylaws give us the right to redeem the shares purchased by an acquiring
person in a control share acquisition. We can do this if the acquiring person
fails to deliver a statement to us listing information required by the Virginia
Act or if our shareholders vote not to grant voting rights to the acquiring
person.
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The Virginia Act permits corporations to opt out of the control share
acquisition provisions. We have not opted out.
Directors' Duties
The standards of conduct for directors of Virginia corporations are listed in
Section 13.1-690 of the Virginia Act. Directors must discharge their duties in
accordance with their good faith business judgement of the best interest of the
corporation. Directors may rely on the advice or acts of others, including
officers, employees, attorneys, accountants and board committees if they have a
good faith belief in their competence. Directors' actions are not subject to a
reasonableness or prudent person standard. Virginia's federal and state courts
have focused on the process involved with directors' decision-making and are
generally supportive of directors if they have based their decision on an
informed process. These elements of Virginia law could make it more difficult
to take over a Virginia corporation than corporations in other states.
Board of Directors
Members of our Board of Directors serve one-year terms and are elected
annually.
Shareholder Proposals and Director Nominations
Our shareholders can submit shareholder proposals and nominate candidates for
the Board of Directors if the shareholders follow advance notice procedures
described in our Bylaws.
To nominate directors, shareholders must submit a written notice to our
corporate secretary at least 60 days before a scheduled meeting. The notice
must include the name and address of the shareholder and of the nominee, a
description of any arrangements between the shareholder and the nominee,
information about the nominee required by the SEC, the written consent of the
nominee to serve as a director and other information.
Shareholder proposals must be submitted to our corporate secretary at least
90 days before the first anniversary of the date of our last annual meeting.
The notice must include a description of the proposal, the reasons for
presenting the proposal at the annual meeting, the text of any resolutions to
be presented, the shareholder's name and address and number of shares held and
any material interest of the shareholder in the proposal.
Director nominations and shareholder proposals that are late or that do not
include all required information may be rejected. This could prevent
shareholders from bringing certain matters before an annual or special meeting,
including making nominations for directors.
Meetings of Shareholders
Under our Bylaws, meetings of the shareholders may be called only by the
chairman of the board, the president or a majority of the Board of Directors.
This provision could have the effect of delaying until the next annual
shareholders' meeting shareholder actions which are favored by the holders of a
majority of our outstanding voting securities, because such person or entity,
even if it acquired a majority of our outstanding voting securities, would be
able to take action as a shareholder, such as electing new directors or
approving a merger, only at a duly called shareholders' meeting.
33
<PAGE>
Amendment of Articles and Bylaws
Generally, our Articles may be amended by a majority of the votes present by
each voting group entitled to vote on a given matter. Some provisions of the
Articles, however, may only be amended or repealed by a vote of at least two-
thirds of the outstanding shares entitled to vote.
Indemnification
We indemnify our officers and directors to the fullest extent permitted under
Virginia law against all liabilities incurred in connection with their service
to us.
Limitation of Liability
Our Articles provide that our directors and officers will not be personally
liable for monetary damages to us for breaches of their fiduciary duty as
directors or officers, unless they violated their duty of loyalty to us or our
shareholders, acted in bad faith, knowingly or intentionally violated the law,
authorized illegal dividends or redemptions or derived an improper personal
benefit from their action as directors or officers. This provision applies only
to claims against directors or officers arising out of their role as directors
or officers and not in any other capacity. Directors and officers remain liable
for violations of the federal securities laws and we retain the right to pursue
legal remedies other than monetary damages, such as an injunction or rescission
for breach of the officer's or director's duty of care.
PLAN OF DISTRIBUTION
We may sell the offered securities (a) through agents; (b) through
underwriters or dealers; or (c) directly to one or more purchasers.
By Agents
Offered securities may be sold through agents that we designate. The agents
agree to use their reasonable best efforts to solicit purchases for the period
of their appointment.
By Underwriters
If underwriters are used in the sale, the offered securities will be acquired
by the underwriters for their own account. The underwriters may resell the
securities in one or more transactions, including negotiated transactions, at a
fixed public offering price or at varying prices determined at the time of
sale. The obligations of the underwriters to purchase the securities will be
subject to certain conditions. The underwriters will be obligated to purchase
all the securities of the series offered if any of the securities are
purchased. Any initial public offering price and any discounts or concessions
allowed or re-allowed or paid to dealers may be changed from time to time.
Direct Sales
We may also sell offered securities directly. In this case, no underwriters
or agents would be involved.
General Information
Underwriters, dealers and agents that participate in the distribution of the
offered securities may be underwriters as defined in the Securities Act of 1933
(the Act), and any discounts or commissions received by them from us and any
profit on the resale of the offered securities by them may be treated as
underwriting discounts and commissions under the Act. Any underwriters or
agents will be identified and their compensation described in a prospectus
supplement.
34
<PAGE>
We may have agreements with the underwriters, dealers and agents to indemnify
them against certain civil liabilities, including liabilities under the Act, or
to contribute with respect to payments which the underwriters, dealers or
agents may be required to make.
Underwriters, dealers and agents may engage in transactions with, or perform
services for, us or our subsidiaries in the ordinary course of their
businesses.
LEGAL OPINIONS
McGuire, Woods, Battle & Boothe LLP, Richmond Virginia, counsel to the
Company, will issue an opinion about the legality of the offered securities for
us. As of December 20, 1999, partners of McGuire, Woods, Battle & Boothe LLP
own less than one half of one percent of our common stock. Certain matters
relating to the formation of the Trusts and the issuance of the Trust Preferred
Securities under Delaware law and the Trust Agreements will be passed upon by
Richards, Layton & Finger, special Delaware counsel to the Trusts and the
Company. Any underwriters will be advised about other issues relating to any
offering by their own legal counsel.
EXPERTS
The financial statements incorporated in this prospectus by reference from
the Company's Annual Report on Form 10-K for the year ended December 31, 1998
have been audited by Deloitte & Touche LLP, independent auditors, as stated in
their report, which is incorporated by reference, and has been so incorporated
in reliance upon the report of such firm given upon their authority as experts
in accounting and auditing.
35
<PAGE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Table of Contents
<TABLE>
<CAPTION>
Page
----
<S> <C>
About This Prospectus..................................................... 2
Where You Can Find More Information....................................... 2
The Company............................................................... 3
The Trusts................................................................ 3
Use of Proceeds........................................................... 3
Ratio of Earnings to Fixed Charges........................................ 4
Description of Debt Securities............................................ 4
Additional Terms of Senior Debt Securities................................ 12
Additional Terms of Junior Subordinated Debentures........................ 13
Description of the Trust Preferred Securities............................. 15
Description of the Guarantees............................................. 25
Relationship Among the Trust Preferred Securities, the Guarantee and the
Junior Subordinated Debentures Held by the Trust......................... 29
Accounting Treatment...................................................... 29
Description of Capital Stock.............................................. 30
Description of Stock Purchase Contracts and Stock Purchase Units.......... 31
Virginia Stock Corporation Act and the Articles and the Bylaws............ 31
Plan of Distribution...................................................... 34
Legal Opinions............................................................ 35
Experts................................................................... 35
</TABLE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
[LOGO OF DOMINION RESOURCES]
$4,500,000,000
Senior Debt Securities
Junior Subordinated Debentures
Trust Preferred Securities and Related Guarantee
Common Stock
Preferred Stock
Stock Purchase Contracts
Stock Purchase Units
----------------
PROSPECTUS
----------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
<TABLE>
<CAPTION>
Estimated
----------
<S> <C>
Securities and Exchange Commission Fee (ACTUAL)............... $1,188,000
Transfer Agent and Registrar Fees............................. 196,500
Fees and Expenses of Trustees................................. 408,000
Rating Agency Fees............................................ 375,000
Printing Expenses............................................. 568,000
Accountants' Fees............................................. 550,000
New York Stock Exchange Listing Fee........................... 85,800
Counsel Fees.................................................. 750,000
Miscellaneous................................................. 453,700
----------
Total....................................................... $4,575,000
==========
</TABLE>
Item 15. 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.
Item 16. Exhibits.
<TABLE>
<CAPTION>
Exhibit No. Description of Document
----------- -----------------------
<C> <S>
1(i) Form of Underwriting Agreement relating to the Senior Debt
Securities (filed herewith).
1(ii) Form of Underwriting Agreement relating to Preferred Stock (filed
herewith).
1(iii) Form of Underwriting Agreement relating to Common Stock (filed
herewith).
1(iv) Form of Underwriting Agreement relating to Trust Preferred
Securities (filed herewith).
1(v) Form of Underwriting Agreement relating to Stock Purchase Units
(filed herewith).
</TABLE>
II-1
<PAGE>
<TABLE>
<CAPTION>
Exhibit No. Description of Document
----------- -----------------------
<C> <S>
4(i) Articles of Incorporation as in effect on August 9, 1999
(Exhibit 3(i), Form 10-Q for the fiscal quarter ended June 30,
1999, File No. 1-8489, incorporated by reference).
4(ii) Bylaws as in effect on October 15, 1999 (Exhibit 3, Form 10-Q
for the fiscal quarter ended September 30, 1999, File No. 1-
8489, incorporated by reference).
4(iii) Form of Senior Indenture (filed herewith).
4(iv) Junior Subordinated Indenture dated as of December 1, 1997
between Dominion Resources, Inc. and The Chase Manhattan Bank,
as trustee as amended by the First Supplemental Indenture dated
as of December 1, 1997 (Exhibits 4.1 and 4.2, respectively, Form
S-4, File No. 333-50653, incorporated by reference).
4(v) A Preferred Stock and a Common Stock certificate will be filed
with each issuance on Form 8-K.
4(vi) Form of Supplemental Indenture to Senior Indenture (filed
herewith).
4(vii) Form of Second Supplemental Indenture to Junior Subordinated
Indenture (filed herewith).
4(viii) Form of Guarantee Agreement to be delivered by Dominion
Resources, Inc. (filed herewith).
4(ix) Certificate of Trust of Dominion Resources Capital Trust II
(filed herewith).
4(x) Trust Agreement of Dominion Resources Capital Trust II, dated
December 17, 1999 (filed herewith).
4(xi) Certificate of Trust of Dominion Resources Capital Trust III
(filed herewith).
4(xii) Trust Agreement of Dominion Resources Capital Trust III, dated
December 17, 1999 (filed herewith).
4(xiii) Form of Amended and Restated Trust Agreement (filed herewith).
4(xiv) Form of Preferred Security (included as Exhibit A to the Form of
Amended and Restated Trust Agreement to be filed as Exhibit
4(xii)).
4(xv) Form of Purchase Contract Agreement (filed herewith).
4(xvi) Form of Pledge Agreement (filed herewith).
4(xvii) Form of Agreement as to Expenses and Liabilities (filed
herewith).
5(i) Opinion of McGuire, Woods, Battle & Boothe LLP, counsel to the
Issuer with respect to the Offered Securities (filed herewith).
5(ii) Opinion of Richards, Layton & Finger, Delaware counsel to the
Issuer with respect to the Offered Securities (filed herewith).
12 Computation of Ratio of Earnings to Fixed Charges (filed
herewith).
23(i) Consent of McGuire, Woods, Battle & Boothe LLP (contained in
Exhibit 5(i)).
23(ii) Consent of Richards, Layton & Finger (contained in Exhibit
5(ii)).
23(iii) Consent of Deloitte & Touche LLP (filed herewith).
24 Powers of Attorney (included herein).
25(i) Statement of Eligibility of The Chase Manhattan Bank for the
Senior Debt Securities (filed herewith).
25(ii) Statement of Eligibility of The Chase Manhattan Bank for the
Junior Subordinated Debentures (Exhibit 25.1 , Form S-4, File
No. 333-50653, incorporated by reference herein).
25(iii) Statement of Eligibility of The Chase Manhattan Bank for the
Guarantee of Dominion Resources Capital Trust II (filed
herewith).
25(iv) Statement of Eligibility of The Chase Manhattan Bank for the
Dominion Resources Capital Trust II Trust Preferred Securities
(filed herewith).
25(v) Statement of Eligibility of The Chase Manhattan Bank for the
Guarantee of Dominion Resources Capital Trust III (filed
herewith).
25(vi) Statement of Eligibility of The Chase Manhattan Bank for the
Dominion Resources Capital Trust III Trust Preferred Securities
(filed herewith).
</TABLE>
II-2
<PAGE>
Item 17. Undertakings.
The undersigned registrants hereby undertake:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high and of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the SEC pursuant to Rule 424(b), if, in the aggregate, the changes
in volume and price represent no more than 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement.
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
with or furnished to the SEC by the registrants pursuant to Section 13
or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment 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.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4) The undersigned registrants hereby undertake that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
each such registrant's annual report pursuant to Section 13(a) or 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 the
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.
(5) 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, the registrants have 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 a registrant of expenses incurred or
paid by a director, officer or controlling person of such 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 agrees that it 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.
(6) The undersigned registrants hereby further undertake:
(i) For purposes of determining any liability under the Securities
Act of 1933, the information omitted from the form of prospectus filed
as part of this registration statement in reliance upon Rule
II-3
<PAGE>
430A and contained in a form of prospectus filed by such registrant
pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act
shall be deemed to be part of this registration statement as of the
time it was declared effective.
(ii) For the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains a
form of prospectus 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.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3, and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Richmond, the Commonwealth of Virginia, on the 21st
day of December 1999.
Dominion Resources, Inc.
/s/ Thos. E. Capps
By:__________________________________
(Thos. E. Capps Chairman of the
Board of Directors,
President and Chief Executive
Officer)
Pursuant to the 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 of December 1999. The officers and directors whose signatures
appear below hereby constitute Patricia A. Wilkerson or W.H. Riggs, Jr., either
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 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.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/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 Officer
Thos. E. Capps
/s/ J. W. Harris Director
____________________________________
J. W. Harris
/s/ Benjamin J. Lambert, III Director
____________________________________
Benjamin J. Lambert, III
/s/ Richard L. Leatherwood Director
____________________________________
Richard L. Leatherwood
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ K. A. Randall Director
____________________________________
K. A. Randall
Director
____________________________________
Frank S. Royal
/s/ S. Dallas Simmons Director
____________________________________
S. Dallas Simmons
/s/ Robert H. Spilman Director
____________________________________
Robert H. Spilman
/s/ Judith B. Warrick Director
____________________________________
Judith B. Warrick
/s/ David A. Wollard Director
____________________________________
David A. Wollard
/s/ Thomas N. Chewning Executive Vice President (Chief Financial
____________________________________ Officer)
Thomas N. Chewning
/s/ J. L. Trueheart Senior Vice President and Controller
____________________________________ (Principal Accounting Officer)
J. L. Trueheart
</TABLE>
II-6
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, Dominion
Resources Capital Trust II has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Richmond, the Commonwealth of Virginia, on the 21st day of December 1999.
Dominion Resources Capital Trust II
By Dominion Resources, Inc., as
Sponsor
By: /s/ G. Scott Hetzer
----------------------------------
Name: G. Scott Hetzer
Pursuant to the requirements of the Securities Act of 1933, Dominion
Resources Capital Trust III has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Richmond, the Commonwealth of Virginia, on the 21st day of December 1999.
Dominion Resources Capital Trust III
By Dominion Resources, Inc., as
Sponsor
By: /s/ G. Scott Hetzer
----------------------------------
Name: G. Scott Hetzer
II-7
<PAGE>
EXHIBIT 1(i)
DOMINION RESOURCES, INC.
Senior Debt Securities
Series _, ____%, Due __________
FORM OF UNDERWRITING AGREEMENT
[Date]
[Name of Underwriter]
as Representative for
the Several Underwriters
named in Schedule II hereto
[Address of Representative]
Ladies and Gentlemen:
The undersigned, Dominion Resources, Inc. (the Company), hereby confirms its
agreement with the several Underwriters named in Schedule II hereto (the
Agreement) with respect to the sale to the several Underwriters of certain of
its Debt Securities (the Debt Securities) specified in Schedule I hereto, and
the public offering thereof by the several Underwriters, upon the terms
specified in Schedule I hereto.
1. Underwriters and Representative. The term "Underwriters" as used herein
-------------------------------
shall be deemed to mean the several persons, firms or corporations (including
the Representative hereinafter mentioned) named in Schedule II hereto, and the
term "Representative" as used herein shall be deemed to mean the representative
to whom this Agreement is addressed, who by signing this Agreement represents
that it has been authorized by the other Underwriters to execute this Agreement
on their behalf and to act for them in the manner herein provided. If there
shall be only one person, firm or corporation named in Schedule II hereto, the
term "Underwriters" and the term "Representative" as used herein shall mean that
person, firm or corporation. All obligations of the Underwriters hereunder are
several and not joint. Any action under or in respect of this Agreement taken
by the Representative will be binding upon all the Underwriters.
<PAGE>
2. Description of the Debt Securities. Schedule I specifies the aggregate
----------------------------------
principal amount of the Debt Securities, the initial public offering price of
the Debt Securities, the purchase price to be paid by the Underwriters, and any
concession from the initial public offering price to be allowed to dealers or
brokers, and sets forth the date, time and manner of delivery of the Debt
Securities and payment therefor. Schedule I also specifies (to the extent not
set forth in the Registration Statement and Prospectus referred to below) the
terms and provisions for the purchase of such Debt Securities. The Debt
Securities will be issued under the Company's Senior Indenture dated as of
_________, ____ between the Company and The Chase Manhattan Bank, N.A., as
Trustee (the Trustee).
3. Representations and Warranties of the Company. The Company represents and
---------------------------------------------
warrants to, and agrees with, the Underwriters that:
(a) A registration statement, No. 333-______ on Form S-3 for the
registration of the Debt Securities under the Securities Act of 1933, as
amended (the Securities Act), heretofore filed with the Securities and
Exchange Commission (the Commission), a copy of which as so filed has been
delivered to you, has become effective. The registration statement, including
all exhibits thereto, as amended through the date hereof, is hereinafter
referred to as the "Registration Statement"; the prospectus relating to the
Debt Securities included in the Registration Statement, which prospectus is
now proposed to be supplemented by a supplement relating to the Debt
Securities to be filed with the Commission under the Securities Act, as so
supplemented, is hereinafter referred to as the "Prospectus". As used herein,
the terms "Registration Statement", "prospectus" and "Prospectus" include all
documents (including any Current Report on Form 8-K) incorporated therein by
reference, and shall include any documents (including any Current Report on
Form 8-K) filed after the date of such Registration Statement, prospectus or
Prospectus and incorporated therein by reference from the date of filing of
such incorporated documents (collectively, the Incorporated Documents).
(b) No order suspending the effectiveness of the Registration Statement
or otherwise preventing or suspending the use of the Prospectus has been
issued by the Commission and is in effect and no proceedings for that purpose
are pending before or, to the knowledge of the Company, threatened by the
Commission. The Registration Statement and the Prospectus comply in all
material respects with the provisions of the Securities Act, the Securities
Exchange Act of 1934, as amended (the Securities Exchange Act), the Trust
Indenture Act of 1939, as amended (the Trust Indenture Act), and the rules,
regulations and releases of the Commission thereunder (the Rules and
Regulations) and, on the date hereof, neither the Registration Statement nor
the Prospectus 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, and, on the Closing Date, the
-2-
<PAGE>
Registration Statement and the Prospectus (including any amendments and
supplements thereto) will conform in all respects to the requirements of the
Securities Act, the Trust Indenture Act and the Rules and Regulations, and
neither of such documents will include any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary
to make the statements therein not misleading; provided, that the foregoing
representations and warranties in this paragraph (b) shall not apply to
statements in or omissions from the Registration Statement or the Prospectus
made in reliance upon information furnished herein or in writing to the
Company by the Underwriters or on the Underwriters' behalf for use in the
Registration Statement or Prospectus or the part of the Registration Statement
which constitutes the Trustee's Statement of Eligibility under the Trust
Indenture Act (the "Form T-1"); and provided, further, that the foregoing
representations and warranties are given on the basis that any statement
contained in an Incorporated Document shall be deemed not to be contained in
the Registration Statement or Prospectus if the statement has been modified or
superseded by any statement in a subsequently filed Incorporated Document or
in the Registration Statement or Prospectus or in any amendment or supplement
thereto.
(c) Except as reflected in, or contemplated by, the Registration
Statement and Prospectus, since the respective most recent dates as of which
information is given in the Registration Statement and Prospectus, there has
not been any material adverse change in the condition of the Company,
financial or otherwise.
(d) The execution, delivery and performance of this the Indenture and
Agreement and the issuance and sale of the Debt Securities and compliance with
the terms and provisions thereof will not result in a material breach or
violation of any of the terms and provisions of, or constitute a default
under, any statute, rule, regulation or order of any governmental agency or
body or any court having jurisdiction over the Company or any Significant
Subsidiary (as defined in Rule 1-01(w) of Regulation S-X) or any of their
properties or, any agreement or instrument to which the Company is a party or
by which the Company is bound or to which any of the properties of the Company
is subject, or the articles of incorporation or bylaws of the Company or any
Significant Subsidiary, and the Company has full power and authority to
authorize, issue and sell the Debt Securities as contemplated by this
Agreement.
(e) All of the issued and outstanding capital stock of each Significant
Subsidiary has been duly authorized and validly issued, is fully paid and
nonassessable, and the capital stock of each Significant Subsidiary is owned
by the Company, directly or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, claim, encumbrance or equitable
right.
4. Public Offering. On the basis of the representations and warranties
---------------
herein
-3-
<PAGE>
contained, but subject to the terms and conditions in this Agreement set forth,
the Company agrees to sell to each of the several Underwriters, and each
Underwriter agrees, severally and not jointly, to purchase from the Company, at
the price, place and time hereinafter specified, the principal amount of the
Debt Securities set forth opposite the name of such Underwriter in Schedule II
hereto. The several Underwriters agree to make a public offering of their
respective Debt Securities specified in Schedule II hereto at the initial public
offering price specified in Schedule I hereto. It is understood that after such
initial offering the several Underwriters reserve the right to vary the offering
price and further reserve the right to withdraw, cancel or modify such offering
without notice.
5. Time and Place of Closing. Delivery of the Debt Securities to, and
-------------------------
payment therefor by, the Representative for the accounts of the several
Underwriters shall be made at the time, place and date specified in Schedule I
or such other time, place and date as the Representative and the Company may
agree upon in writing, and subject to the provisions of Section 10 hereof. The
hour and date of such delivery and payment are herein called the "Closing Date".
Unless otherwise specified in Schedule I hereto, payment for the Debt Securities
shall be made by wire transfer of immediately available funds to the Company's
account on the Closing Date against delivery of the Debt Securities, in fully
registered form, Cede & Co., as nominee for The Depository Trust Company. The
certificate(s) for the Debt Securities will be made available at the location
specified on Schedule I for examination by the Representatives not later than
12:00 noon, New York time, on the last business day prior to the Closing Date.
6. Covenants of the Company. The Company agrees that:
------------------------
(a) The Company, at or prior to the Closing Date, will deliver to the
Representative conformed copies of the Registration Statement as originally
filed, including all exhibits, any related preliminary prospectus supplement,
the Prospectus and all amendments and supplements to each such document, in
each case as soon as available and in such quantities as are reasonably
requested by the Representative.
(b) The Company will pay all expenses in connection with (i) the
preparation and filing by it of the Registration Statement and Prospectus and
the printing of this Agreement, (ii) the preparation, issue and delivery of
certificates for the Debt Securities, (iii) any fees and expenses of the
Trustee and (iv) the printing and delivery to the Underwriters in reasonable
quantities of copies of the Registration Statement and the Prospectus (each as
originally filed and as subsequently amended). The Company also will pay all
taxes, if any, except transfer taxes, on the issue of the Debt Securities. In
addition, the Company will pay the reasonable out of pocket fees and
disbursements of Underwriters' outside counsel, [Underwriters' Counsel], in
connection with the qualification of the Debt Securities under state
securities or blue sky laws or investment laws (if and to the extent such
qualification is required by the Underwriters or the Company).
-4-
<PAGE>
(c) If, during the time when a prospectus relating to the Debt Securities
is required to be delivered under the Act, any event occurs as a result of
which the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading, or if it is necessary at any time to amend the
Prospectus to comply with the Act, the Company promptly will (i) notify the
Representative to suspend solicitation of purchases of the Debt Securities and
(ii) at its expense, prepare and file with the Commission an amendment or
supplement which will correct such statement or omission or an amendment which
will effect such compliance. In case any Underwriter is required to deliver a
prospectus in connection with the sale of any Debt Securities after the
expiration of the period specified in the preceding sentence, the Company,
upon the request of the Representative, will furnish to the Representative, at
the expense of such Underwriter, a reasonable quantity of a supplemented or
amended prospectus, or supplements or amendments to the Prospectus, complying
with Section 10(a) of the Securities Act. During the period specified in the
second sentence of this Section, the Company will continue to prepare and file
with the Commission on a timely basis all documents or amendments required
under the Securities Exchange Act and the applicable rules and regulations of
the Commission thereunder; provided, that the Company shall not file such
documents or amendments without also furnishing copies thereof to the
Representative and [Underwriters' Counsel].
(d) The Company will advise the Representative promptly of any proposal
to amend or supplement the Registration Statement or the Prospectus and will
afford the Representative a reasonable opportunity to comment on any such
proposed amendment or supplement; and the Company will also advise the
Representative promptly of the filing of any such amendment or supplement and
of the institution by the Commission of any stop order proceedings in respect
of the Registration Statement or of any part thereof and will use its best
efforts to prevent the issuance of any such stop order and to obtain as soon
as possible its lifting, if issued.
(e) The Company will make generally available to its security holders, as
soon as it is practicable to do so, an earnings statement of the Company
(which need not be audited) in reasonable detail, covering a period of at
least 12 months beginning within three months after the effective date of the
Registration Statement, which earnings statement shall satisfy the
requirements of Section 11(a) of the Securities Act.
(f) The Company will furnish such proper information as may be lawfully
required and otherwise cooperate in qualifying the Debt Securities for offer
and sale under the securities or blue sky laws of such states as the
Representative may designate; provided, however, that the Company shall not be
required in any state to qualify as a foreign
-5-
<PAGE>
corporation, or to file a general consent to service of process, or to
submit to any requirements which it deems unduly burdensome.
(g) Fees and disbursements of [Underwriters' Counsel] who are acting as
counsel for the Underwriters (exclusive of fees and disbursements of such
counsel which are to be paid as set forth in Section 6(b)), shall be paid by
the Underwriters; provided, however, that if this Agreement is terminated in
accordance with the provisions of Sections 7 or 8 hereof, the Company shall
reimburse the Representative for the account of the Underwriters for the
amount of such fees and disbursements.
7. Conditions of Underwriters' Obligations; Termination by the Underwriters.
------------------------------------------------------------------------
(a) The obligations of the Underwriters to purchase and pay for the
Debt Securities shall be subject to the following conditions:
(i) No stop order suspending the effectiveness of the
Registration Statement shall be in effect on the Closing Date and no
proceedings for that purpose shall be pending before, or to the
knowledge of the Company threatened by, the Commission on such date.
The Representative shall have received, prior to payment for the Debt
Securities, a certificate dated the Closing Date and signed by the
President or any Vice President of the Company to the effect that no
such stop order is in effect and that no proceedings for such purpose
are pending before or, to the knowledge of the Company, threatened by
the Commission.
(ii) At the Closing Date an order or orders of the Commission
pursuant to the Holding Company Act permitting the issuance and sale
of the Debt Securities shall be in full force and effect and all
provisions of such order or orders heretofore entered are deemed
acceptable to the Representative and the Company, and all provisions
of such order or orders hereafter entered shall be deemed acceptable
to the Representative and the Company unless within 24 hours after
receiving a copy of any such order either shall give notice to the
other to the effect that such order contains an unacceptable
provision.
(iii) At the Closing Date the Representative shall receive, on
behalf of the several Underwriters, the opinions of McGuire, Woods,
Battle & Boothe, LLP., counsel to the Company and [Underwriters'
Counsel], counsel to the Underwriters, substantially in the forms
attached hereto as Schedules III and IV.
-6-
<PAGE>
(iv) On the date of this Agreement and on the Closing Date,
the Representative shall have received from Deloitte & Touche LLP a
letter addressed to the Representative, dated the date of this
Agreement and the Closing Date, respectively, (A) confirming that
they are independent public accountants as required by the Securities
Act; (B) stating in effect that, in their opinion, the audited
financial statements included in or incorporated by reference in the
Registration Statement and the Prospectus and audited by them as
stated in their report incorporated by reference in the Registration
Statement (the Audited Financial Statements), comply as to form in
all material respects with the applicable accounting requirements
adopted pursuant to the Securities Exchange Act; (C) stating, in
effect, that on the basis of a reading of the minutes of the meetings
of the Board of Directors of the Company and of committees of the
Board since the end of the period covered by the Audited Financial
Statements, a reading of the unaudited financial statements
incorporated by reference in the Prospectus (if any), of the
unaudited statement of income for any interim period for which
information is included in the Prospectus under the caption "Selected
Financial Information" or any section updating such information, and
of the latest available unaudited financial statements of the Company
covering a period of twelve months ending after the end of the period
covered by the Audited Financial Statements (if any), and inquiries
of officials of the Company responsible for financial and accounting
matters (which procedures did not constitute an audit made in
accordance with generally accepted auditing standards), nothing came
to their attention that caused them to believe that such unaudited
financial statements incorporated by reference in the Prospectus are
not in conformity with generally accepted accounting principles
applied on a basis substantially consistent with that of the Audited
Financial Statements; and (D) stating, in effect, that on the basis
of more limited procedures than those set forth in the foregoing
clause (C), consisting merely of the reading of the minutes referred
to in said clause and inquiries of officials of the Company
responsible for financial and accounting matters, nothing came to
their attention at a date not more than five business days prior to
the date of such letter that caused them to believe that (1) at such
date there was any decrease in common stockholder's equity or any
increase in funded debt of the Company or any decrease in net assets
as compared with the amounts shown in the balance sheet included in
the most recent financial statements incorporated by reference, or
(2) for the period from the date of the most recent unaudited
financial statements included or incorporated by reference in the
Registration Statement and the Prospectus to a date not more than
five business days prior to the date of such letter there were any
decreases, as compared with the corresponding
-7-
<PAGE>
period in the preceding year, in the operating revenues, operating
income or net income, except (with respect to (1) or (2)) in all
instances for changes or decreases that the Registration Statement
discloses have occurred or may occur; provided, however, that said
letters may vary from the requirements specified in clause (D) hereof
in such manner as the Representative in its sole discretion may deem
to be acceptable. Said letters shall also state that the dollar
amounts, percentages and other financial information (in each case to
the extent that such dollar amounts, percentages and other financial
information, either directly or by analysis or computation, are
derived from the general accounting records of the Company) that
appear (1) in the Prospectus under the captions "Selected Financial
Information" and "Other Selected Data" and under any caption
contained in a supplement to the Prospectus updating such dollar
amounts, percentages and other financial information (limited to
total assets and plant expenditures), (2) in the Company's most
recent Annual Report on Form 10-K under the caption "Selected
Financial Data" or (3) in the Registration Statement under the
caption "Ratio of Earnings to Fixed Charges" have been compared with
the general accounting records of the Company and such dollar
amounts, percentages and financial information have been found to be
in agreement with the accounting records of the Company and the
computations have been found to be arithmetically correct. Each such
letter shall relate to the Registration Statement and Prospectus as
amended or supplemented to the date of each such letter.
(v) Subsequent to the execution of this Agreement and prior to
the Closing Date, (A) except as reflected in, or contemplated by, the
Registration Statement and the Prospectus, there shall not have
occurred (1) any change in the Debt Securities of the Company (other
than a decrease in the aggregate principal amount thereof
outstanding), (2) any material adverse change in the general affairs,
financial condition or earnings of the Company or (3) any material
transaction entered into by the Company other than a transaction in
the ordinary course of business, the effect of which in each such
case in the judgment of the Representative is so material and so
adverse that it makes it inadvisable to proceed with the public
offering or delivery of the Debt Securities on the terms and in the
manner contemplated in the Prospectus and this Agreement, or (B)
there shall not have occurred (1) a downgrading in the rating
accorded the Company's senior unsecured notes by any "nationally
recognized statistical rating organization" (as that term is defined
by the Commission for purposes of Rule 436(g)(2) under the Securities
Act), (2) any general suspension of trading in securities on the New
York Stock Exchange or any limitation on prices for such trading or
-8-
<PAGE>
any restrictions on the distribution of securities established by the
New York Stock Exchange or by the Commission or by any federal or
state agency or by the decision of any court, (3) a banking
moratorium declared either by federal or New York State authorities
or (4) any outbreak or escalation of major hostilities in which the
Unites States is involved, any declaration of war by the United
States Congress or any other substantial national or international
calamity or crisis resulting in the declaration of a national
emergency, the effect of which outbreak, escalation, declaration,
calamity or crisis, in the reasonable judgment of the Representative,
makes it impracticable or inadvisable to proceed with the public
offering or delivery of the Debt Securities on the terms and in the
manner contemplated in the Prospectus and in this Agreement.
(vi) On the Closing Date, the representations and warranties
of the Company in this Agreement shall be true and correct as if made
on and as of such date, and the Company shall have performed all
obligations and satisfied all conditions required of it under this
Agreement; and, at the Closing Date, the Representative shall have
received a certificate to such effect signed by the President or any
Vice President of the Company.
(vii) All legal proceedings to be taken in connection with the
issuance and sale of the Debt Securities shall have been
satisfactory in form and substance to [Underwriters' Counsel].
(b) In case any of the conditions specified above in Section 7(a)
shall not have been fulfilled, this Agreement may be terminated by the
Representative upon mailing or delivering written notice thereof to the
Company; provided, however, that in case the conditions specified in
subsections 7(a)(v) and (vi) shall not have been fulfilled, this Agreement
may not be so terminated by the Representative unless Underwriters who
have agreed to purchase in the aggregate greater than 50% or more of the
aggregate principal amount of the Debt Securities shall have consented to
such termination and the aforesaid notice shall so state. Any such
termination shall be without liability of any party to any other party
except as otherwise provided in Section 9 and Sections 6(b), 6(g) and 7(c)
hereof.
(c) If this Agreement shall be terminated by the Representative
pursuant to Section 7(b) above or because of any failure or refusal on the
part of the Company to comply with the terms or to fulfill any of the
conditions of this Agreement, or if for any reason the Company shall be
unable to perform its obligations under this Agreement, then in any such
case, the Company will reimburse the Underwriters, severally, for all out-
of-pocket expenses (in addition to
-9-
<PAGE>
the fees and disbursements of their outside counsel as provided in Section
6(g)) reasonably incurred by such Underwriters in connection with this
Agreement or the offering contemplated hereunder and, upon such
reimbursement, the Company shall be absolved from any further liability
hereunder, except as provided in Section 6(b) and Section 9.
8. Conditions of the Obligation of the Company. The obligation of the
-------------------------------------------
Company to deliver the Debt Securities shall be subject to the conditions set
forth in the first sentence of Section 7(a)(i) and in Section 7(a)(ii). In case
said conditions shall not have been fulfilled, this Agreement may be terminated
by the Company by mailing or delivering written notice thereof to the
Representative. Any such termination shall be without liability of any party to
any other party except as otherwise provided in Sections 6(b), 6(g), 9 and 10(c)
hereof.
9. Indemnification. (a) The Company agrees to indemnify and hold harmless
---------------
each Underwriter and each person who controls any Underwriter within the meaning
of Section 15 of the Securities Act or Section 20(a) of the Securities Exchange
Act, against any and all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject under the Securities
Act, the Securities Exchange Act, or any other statute or common law and to
reimburse each such Underwriter and controlling person for any legal or other
expenses (including, to the extent hereinafter provided, reasonable outside
counsel fees) incurred by them in connection with investigating any such losses,
claims, damages, or liabilities, or in connection with defending any actions,
insofar as such losses, claims, damages, liabilities, expenses or actions arise
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus, or in
either such document as amended or supplemented (if any amendments or
supplements thereto shall have been furnished), or any Preliminary Prospectus
(if and when used prior to the effective date of the Registration Statement), or
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;
provided that the foregoing agreement, insofar as it relates to any Preliminary
Prospectus, shall not inure to the benefit of any Underwriter (or to the benefit
of any person who controls such Underwriter) on account of any losses, claims,
damages or liabilities arising out of the sale of any of the Debt Securities by
such Underwriter to any person if it shall be established that a copy of the
Prospectus, excluding any documents incorporated by reference (as supplemented
or amended, if the Company shall have made any supplements or amendments which
have been furnished to the Representative), shall not have been sent or given by
or on behalf of such Underwriter to such person at or prior to the written
confirmation of the sale to such person in any case where such delivery is
required by the Securities Act, if the misstatement or omission leading to such
loss, claim, damage or liability was corrected in the Prospectus (excluding any
documents incorporated by reference) as amended or supplemented, and such
correction would have cured the defect giving rise to such loss, claim, damage,
or liability; and provided further, however, that the indemnity agreement
contained in this Section 9(a) shall not apply to any such losses, claims,
damages, liabilities, expenses or actions
-10-
<PAGE>
arising out of or based upon any such untrue statement or alleged untrue
statement, or any such omission or alleged omission, if such statement or
omission was made in reliance upon information furnished herein or otherwise in
writing to the Company by or on behalf of any Underwriter for use in the
Registration Statement or any amendment thereto, in the Prospectus or any
supplement thereto, or in any Preliminary Prospectus. The indemnity agreement of
the Company contained in this Section 9(a) and the representations and
warranties of the Company contained in Section 3 hereof shall remain operative
and in full force and effect, regardless of any investigation made by or on
behalf of any Underwriter or any such controlling person, and shall survive the
delivery of the Debt Securities.
(b) Each Underwriter agrees, severally and not jointly, to indemnify and hold
harmless the Company, its officers and directors, each other Underwriter, and
each person who controls any thereof within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Securities Exchange Act, against any and
all losses, claims, damages or liabilities, joint or several, to which they or
any of them may become subject under the Securities Act, the Securities Exchange
Act, or any other statute or common law and to reimburse each of them for any
legal or other expenses (including, to the extent hereinafter provided,
reasonable outside counsel fees) incurred by them in connection with
investigating any such losses, claims, damages or liabilities or in connection
with defending any actions, insofar as such losses, claims, damages,
liabilities, expenses or actions arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus, or in either such document as amended
or supplemented (if any amendments or supplements thereto shall have been
furnished), or any Preliminary Prospectus (if and when used prior to the
effective date of the Registration Statement), or 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, if such statement or
omission was made in reliance upon information furnished herein or in writing to
the Company by or on behalf of such Underwriter for use in the Registration
Statement or the Prospectus or any amendment or supplement to either thereof, or
any Preliminary Prospectus. The indemnity agreement of the respective
Underwriters contained in this Section 9(b) shall remain operative and in full
force and effect, regardless of any investigation made by or on behalf of the
Company, or any such other Underwriter or any such controlling person, and shall
survive the delivery of the Debt Securities.
(c) The Company and each of the Underwriters agrees that, upon the receipt of
notice of the commencement of any action against the Company or any of its
officers or directors, or any person controlling the Company, or against such
Underwriter or controlling person as aforesaid, in respect of which indemnity
may be sought on account of any indemnity agreement contained herein, it will
promptly give written notice of the commencement thereof to the party or parties
against whom indemnity shall be sought hereunder, but the omission so to notify
such indemnifying party or parties of any such action shall not relieve such
indemnifying party or parties from any liability which it or they may have to
the indemnified party otherwise than on account of such indemnity agreement. In
case such notice of any such action shall be so given, such indemnifying party
shall
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<PAGE>
be entitled to participate at its own expense in the defense or, if it so
elects, to assume (in conjunction with any other indemnifying parties) the
defense of such action, in which event such defense shall be conducted by
counsel chosen by such indemnifying party (or parties) and satisfactory to the
indemnified party or parties who shall be defendant or defendants in such
action, and such defendant or defendants shall bear the fees and expenses of any
additional outside counsel retained by them; provided that, if the defendants in
any such action include both the indemnified party and the indemnifying party
(or parties) and the indemnified party shall have reasonably concluded that
there may be legal defenses available to it and/or other indemnified parties
which are different from or additional to those available to the indemnifying
party (or parties), the indemnified party shall have the right to select
separate counsel to assert such legal defenses and to participate otherwise in
the defense of such action on behalf of such indemnified party. The indemnifying
party shall bear the reasonable fees and expenses of outside counsel retained by
the indemnified party if (i) the indemnified party shall have retained such
counsel in connection with the assertion of legal defenses in accordance with
the proviso to the preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel, representing the indemnified parties under Section 9(a) or
9(b), as the case may be, who are parties to such action), (ii) the indemnifying
party shall have elected not to assume the defense of such action, (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the commencement of the action, or (iv) the indemnifying party
has authorized the employment of counsel for the indemnified party at the
expense of the indemnifying party. Notwithstanding the foregoing sentence, an
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent (such consent not to be unreasonably
withheld), but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
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 indemnification may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such a proceeding), 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) If the indemnification provided for in this Section 9 is unavailable to
or insufficient to hold harmless an indemnified party in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is appropriate
to reflect the relative fault of the Company, on the one hand, and of the
Underwriters, on the other, in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations, including
relative benefit. The relative fault 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 required to be
stated therein or necessary in order to make the statements therein not
misleading relates to information supplied by the Company on the one hand or by
you on the other and the parties' relative intent, knowledge, access
-12-
<PAGE>
to information and opportunity to correct or prevent such statement or omission.
The Company and you agree that it would not be just and equitable if
contribution pursuant to this Section 9(d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above in this Section 9(d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in this
Section 9(d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. 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 who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations under this Section 9(d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
10. Termination by the Company. If any one or more of the Underwriters shall
--------------------------
fail or refuse to purchase the Debt which it or they have agreed to purchase
hereunder, and the aggregate principal amount of the Debt Securities which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
is not more than one-tenth of the aggregate principal amount of the Debt
Securities, then the other Underwriters shall be obligated severally in the
proportions which the principal amount of the Debt Securities set forth opposite
their respective names in Schedule II bears to the aggregate underwriting
obligations of all non-defaulting Underwriters, or in such other proportions as
the Underwriters may specify, to purchase the Debt Securities which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase.
If any Underwriter or Underwriters shall so fail or refuse to purchase Debt
Securities and the aggregate principal amount of the Debt Securities with
respect to which such default occurs is more than one-tenth of the aggregate
principal amount of the Debt Securities and arrangements satisfactory to the
Underwriters and the Company for the purchase of such Debt Securities are not
made within 36 hours after such default, this Agreement will terminate without
liability on the part of any non-defaulting Underwriter (except as provided in
Section 6(g) and Section 9) or of the Company (except as provided in Section
6(b) and Section 9). In any such case not involving a termination, either the
Representative or the Company shall have the right to postpone the Closing Date,
but in no event for longer than seven days, in order that the required changes,
if any, in the Registration Statement and in the Prospectus or in any other
documents or arrangements may be effected. Any action taken under this Section
10 shall not relieve any defaulting Underwriter from liability in respect of any
default of such Underwriter under this Agreement.
11. Representations, Warranties and Agreements to Survive Delivery. All
--------------------------------------------------------------
representations, warranties and agreements contained in this Agreement or
contained in certificates of officers of the Company submitted pursuant hereto
shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of any Underwriter or any controlling person
of any Underwriter, or by or on behalf of the Company, and shall survive
delivery of the Debt Securities.
12. Miscellaneous. The validity and interpretation of this Agreement shall
-------------
be governed by the laws of the State of New York. This Agreement shall inure to
the benefit of the Company, the Underwriters and, with respect to the provisions
of Section 9 hereof, each controlling person and
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<PAGE>
each officer and director of the Company referred to in Section 9, and their
respective successors, assigns, executors and administrators. Nothing in this
Agreement is intended or shall be construed to give to any other person, firm or
corporation any legal or equitable right, remedy or claim under or in respect of
this Agreement or any provision herein contained. The term "successors" as used
in this Agreement shall not include any purchaser, as such, of any of the Debt
Securities from any of the several Underwriters.
13. Notices. All communications hereunder shall be in writing and if to the
-------
Underwriters shall be mailed, telexed, telecopied or delivered to the
Representative at the address set forth on Schedule I hereto, or if to the
Company shall be mailed, telexed, telecopied or delivered to it, attention of
Treasurer, Dominion Resources, Inc., 120 Tredegar Street, Richmond, Virginia
23219.
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<PAGE>
Please sign and return to us a counterpart of this letter, whereupon this
letter will become a binding agreement between the Company and the several
Underwriters in accordance with its terms.
DOMINION RESOURCES, INC.
By:_________________________________
Title:
The foregoing agreement is
hereby confirmed and accepted,
as of the date first above
written.
[Name of Representation]
By:________________________________
Title:
Acting individually and on
behalf of the other several
Underwriters named in
Schedule II hereto.
15
<PAGE>
SCHEDULE I
Title of Debt Securities: 200_, Series _, ____ %, due [date] Debt Securities
Aggregate Principal Amount: $_____________
Initial Price to Public:
% of the principal amount of the Debt Securities plus accrued interest,
if any, from the date of issuance
Initial Purchase Price to be paid by Underwriters:
% of the principal amount of the Debt Securities
Time of Delivery: [Closing Date and time]
Closing Location: [Address]
The Debt Securities will be available for inspection by the
Representative at: [Address]
Address for Notices to the Underwriters:
16
<PAGE>
SCHEDULE II
Principal Amount
Underwriter of Debt Securities to be Purchased
- ----------- ----------------------------------
17
<PAGE>
SCHEDULE III
PROPOSED FORM OF OPINION
OF
UNDERWRITER'S COUNSEL
Re: DOMINION RESOURCES, INC.
____ Series ___% Debt Securities,
due ___, 200_
__, 200_
[Name of Underwriter]
as Representative for
the Several Underwriters
named in Schedule II hereto
[Address of Underwriter]
Ladies and Gentlemen:
We have acted as counsel for you in connection with arrangements for
the issuance by Dominion Resources, Inc. (the Company) of up to U.S. $____
aggregate principal amount of its ____ Series ___% Debt Securities, due ___,
200_ (the Debt Securities) under and pursuant to a Senior Indenture, dated as
of ____, 200_ between the Company and The Chase Manhattan Bank, as trustee (the
Trustee), as supplemented by ____ Supplemental Indenture dated as of __, ____
(collectively, the Indenture), and the offering of the Debt Securities by you
pursuant to an Underwriting Agreement dated __, ____ by and between you and the
Company (the Underwriting Agreement). All terms not otherwise defined herein
shall have the meanings set forth in the Underwriting Agreement.
We have examined originals, or copies certified to our satisfaction of
such corporate records of the Company, indentures, agreements and other
instruments, certificates of public officials, certificates of officers and
representatives of the Company and of the Trustee, and other documents, as we
have deemed necessary as a basis for the opinions hereinafter expressed. As to
various questions of fact material to such opinions, we have, when relevant
18
<PAGE>
facts were not independently established, relied upon certifications by officers
of the Company, the Trustee and other appropriate persons and statements
contained in the Registration Statement hereinafter mentioned. All legal
proceedings taken as of the date hereof in connection with the transactions
contemplated by the Underwriting Agreement have been satisfactory to us.
In addition, we attended the closing held today [Address], at which
the Company satisfied the conditions contained in Section 7 of the Underwriting
Agreement that are required to be satisfied as of the Closing Date.
Based upon the foregoing, and having regard to legal considerations
that we deem relevant, we are of the opinion that:
A. The Company is a corporation duly incorporated and existing under
the laws of Virginia, and has corporate power to transact its business as
described in the Prospectus.
B. The Underwriting Agreement has been duly authorized by all
necessary corporate action and has been duly executed and delivered by the
Company.
C. The Indenture has been duly authorized, executed and delivered by,
and constitutes a valid and binding obligation of, the Company and has been duly
qualified under the Trust Indenture Act, except that we express no opinion as to
the validity or enforceability of any covenant to pay interest on defaulted
interest, and except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally or by general equitable principles
(regardless of whether enforcement is considered in a proceeding in equity or at
law).
D. The Debt Securities have been duly authorized by the Company and,
when executed by the Company and completed and authenticated by the Trustee in
accordance with the Indenture and delivered and paid for as provided in the
Underwriting Agreement, will have been duly issued under the Indenture and will
constitute valid and binding obligations of the Company entitled to the benefits
provided by the Indenture, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally or by general equitable
principles (regardless of whether enforcement is considered in a proceeding in
equity or at law).
E. The Registration Statement (Reg. No. 333-___) with respect to the
Debt Securities filed pursuant to the Securities Act, has become effective and
remains in effect at this date, and the Prospectus may lawfully be used for the
purposes specified in the Securities Act in connection with the offer for sale
and the sale of Debt Securities in the manner therein specified.
The Registration Statement and the Prospectus (except the financial
statements incorporated by reference therein, as to which we express no opinion)
appear on their face to be appropriately responsive in all material respects to
the requirements of the Securities Act, and to the applicable rules and
regulations of the Commission thereunder.
III-2
<PAGE>
As to the statements relating to the Debt Securities under
DESCRIPTION OF THE DEBT SECURITIES in the prospectus initially filed as part of
the Registration Statement, as supplemented by the statements under the
DESCRIPTION OF THE ____ SERIES DEBT SECURITIES in the Prospectus Supplement
dated __, ____ (the Prospectus Supplement), we are of the opinion that the
statements are accurate and do not omit any material fact required to be stated
therein or necessary to make such statements not misleading. As to the
statistical statements in the Registration Statement (which includes the
Incorporated Documents), we have relied solely on the officers of the Company.
As to the other matters, we have not undertaken to determine independently the
accuracy or completeness of the statements contained or incorporated by
reference in the Registration Statement or in the Prospectus. We accordingly
assume no responsibility for the accuracy or completeness of the statements made
in the Registration Statement except as stated above in regard to the above
captions. We note that we were not involved in the preparation of the
Registration Statement or the prospectus initially filed as part thereof, and
that the Incorporated Documents were prepared and filed by the Company without
our participation. We have, however, participated in conferences with counsel
for and representatives of the Company in connection with the preparation of the
Prospectus Supplement, and we have reviewed the Incorporated Documents and such
of the corporate records of the Company as we deemed advisable. None of the
foregoing disclosed to us any information that gives us reason to believe that
the Registration Statement or the Prospectus (except the financial statements
incorporated by reference therein, as to which we express no opinion) contained
on the date the Registration Statement became effective or now contains any
untrue statement of a material fact or omitted on said date or now omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading. The foregoing opinion is given on the basis
that any statement contained in an Incorporated Document shall be deemed not to
be contained in the Registration Statement or Prospectus if the statement has
been modified or superseded by any statement in a subsequently filed
Incorporated Document or in the Registration Statement or Prospectus.
F. An appropriate order of the Securities and Exchange Commission
(the Commission) with respect to the sale of the Debt Securities under the
Public Utility Holding Company Act of 1935, as amended, has been issued, and
such order remains in effect at this date and constitutes valid and sufficient
authorization for the sale of the Debt Securities as contemplated by the
Underwriting Agreement. No approval or consent by any public regulatory body,
other than such order and notification of effectiveness by the Commission, is
legally required in connection with the sale of the Debt Securities as
contemplated by the Underwriting Agreement (except to the extent that compliance
with the provisions of securities or blue sky laws of certain states may be
required in connection with the sale of the Debt Securities in such states) and
the carrying out of the provisions of the Underwriting Agreement.
The opinion expressed in paragraph E is given on the basis that any
statement contained in an Incorporated Document shall be deemed not to be
contained in the Registration Statement or Prospectus if the statement has been
modified or superseded by any statement in a subsequently filed Incorporated
Document or in the Registration Statement or Prospectus.
III-3
<PAGE>
Very truly yours,
UNDERWRITER'S COUNSEL
III-4
<PAGE>
SCHEDULE IV
PROPOSED FORM OF OPINION
OF
MCGUIRE, WOODS, BATTLE & BOOTHE LLP
One James Center
901 East Cary Street
Richmond, Virginia 23219
Re: DOMINION RESOURCES, INC.
____ Series _____% Debt Securities
due ___, 200_
__, ____
[Name of Underwriter]
as Representative for
the Several Underwriters
named in Schedule II hereto
[Address of Underwriter]
Ladies and Gentlemen:
The arrangements for issuance of up to U.S. $______ aggregate principal
amount of ____ Series ____% Debt Securities, due ___, 200_ (the Debt
Securities), of Dominion Resources, Inc. (the Company) under a Senior Indenture
dated as of ___, 200_ between the Company and [The Chase Manhattan Bank], as
trustee (the Trustee), as supplemented by a ___ Supplemental Indenture dated as
of __, ____ (collectively, the Indenture), and pursuant to an Underwriting
Agreement dated __, ____, by and between the Company and the Underwriters
listed on Schedule II as attached thereto (the Underwriting Agreement), have
been taken under our supervision as counsel for the Company. Terms not
otherwise defined herein have the meanings set forth in the Underwriting
Agreement.
We have examined originals, or copies certified to our satisfaction, of
such corporate records of the Company, indentures, agreements, and other
instruments, certificates of public officials, certificates of officers and
representatives of the Company and of the Trustee, and other documents, as we
have deemed it necessary to require as a basis for the opinions hereinafter
<PAGE>
expressed. As to various questions of fact material to such opinions, we have,
when relevant facts were not independently established, relied upon
certifications by officers of the Company, the Trustee and other appropriate
persons and statements contained in the Registration Statement hereinafter
mentioned. All legal proceedings taken as of the date hereof in connection with
the transactions contemplated by the Underwriting Agreement have been
satisfactory to us.
On this basis we are of the opinion that:
1. The Company is a corporation duly organized and existing as a
corporation in good standing under the laws of Virginia. Neither the nature of
the Company's business nor the properties it owns or holds under lease makes
necessary qualification as a foreign corporation in any state where it is not
now so qualified or where the failure to be so qualified would have a material
adverse effect on the Company and its subsidiaries taken as a whole, and the
Company has corporate power to conduct its business as described in the
Prospectus and to issue the Debt Securities.
2. Each of [Insert Names of Company's Significant Subsidiaries] has been
duly [incorporated] and is validly existing as a [corporation] in good standing
under the laws of the respective jurisdiction of their organization.
3. All requisite corporate and governmental authorizations have been given
for the issuance of the Debt Securities under the Indenture.
4. The Underwriting Agreement has been duly authorized by all necessary
corporate action and has been duly executed and delivered by the Company.
5. The Indenture has been duly authorized, executed, and delivered by,
and constitutes a valid and binding obligation of, the Company and has been duly
qualified under the Trust Indenture Act, except that we express no opinion as to
the validity or enforceability of any covenant to pay interest on defaulted
interest, and except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally or by general equitable principles
(regardless of whether enforcement is considered in a proceeding in equity or at
law).
6. The Debt Securities have been duly authorized by the Company and, when
duly executed by the Company and completed and authenticated by the Trustee in
accordance with, and in the form contemplated by, the Indenture and issued,
delivered and paid for in accordance with the Underwriting Agreement, will have
been duly issued under the Indenture and will constitute valid and binding
obligations of the Company entitled to the benefits provided by the Indenture,
except as enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights generally or by general equitable principles (regardless of
whether enforcement is considered in a proceeding in equity or at law).
7. The Registration Statement (Reg. No. 333-____) with respect to the Debt
IV-2
<PAGE>
[representative]
[date]
Page 3
Securities filed pursuant to the Securities Act, has become effective and
remains in effect at this date, and the Prospectus may lawfully be used for the
purposes specified in the Securities Act in connection with the offer for sale
and the sale of the Debt Securities in the manner therein specified.
We are of the opinion that the statements relating to the Debt Securities
contained in the prospectus initially filed as part of the Registration
Statement under DESCRIPTION OF THE DEBT SECURITIES AND SUBORDINATED DEBT
SECURITIES, as supplemented by the statements under DESCRIPTION OF THE ____
SERIES __% DEBT SECURITIES in the Prospectus Supplement dated __, ____, are
substantially accurate and fair. As to the statistical statements in the
Registration Statement (which includes the Incorporated Documents), we have
relied solely on the officers of the Company. As to other matters of fact, we
have consulted with officers and other employees of the Company to inform them
of the disclosure requirements of the Securities Act. We have examined various
reports, records, contracts and other documents of the Company and orders and
instruments of public officials, which our investigation led us to deem
pertinent. In addition, we attended the due diligence meetings with
representatives of the Company and the closing at which the Company satisfied
the conditions contained in Section 7 of the Underwriting Agreement. We have
not, however, undertaken to make any independent review of the other records of
the Company. We accordingly assume no responsibility for the accuracy or
completeness of the statements made in the Registration Statement except as
stated above in regard to the aforesaid captions. But such consultation,
examination and attendance disclosed to us no information with respect to such
other matters that gives us reason to believe that the Registration Statement or
the Prospectus contained on the date the Registration Statement became effective
or contains now any untrue statement of a material fact or omitted on said date
or omits now to state a material fact required to be stated therein or necessary
to make the statements therein not misleading. We are of the opinion that the
Registration Statement (excepting the financial statements incorporated therein
by reference, as to which we express no opinion) complies as to form in all
material respects with all legal requirements.
The Registration Statement and the Prospectus (except the financial
statements incorporated by reference therein, as to which we express no opinion)
appear on their face to be appropriately responsive in all material respects to
the requirements of the Securities Act, and to the applicable rules and
regulations of the Commission thereunder.
7. To the best of our knowledge, there are no actions, suits or proceedings
pending or threatened to which the Company is a party or to which any of its
properties is subject other than any proceedings described in the Prospectus and
proceedings which we believe are not
-3-
<PAGE>
[representative]
[date]
Page 4
likely to have a material adverse effect on the power or ability of the Company
to perform its obligations under the Underwriting Agreement or to consummate the
transactions contemplated thereby or by the Prospectus.
8. [An appropriate order of the Securities and Exchange Commission (the
Commission) with respect to the sale of the Debt Securities under the Public
Utility Holding Company Act of 1935, as amended, has been issued, and such order
remains in effect at this date and constitutes valid and sufficient
authorization for the sale of the Debt Securities as contemplated by the
Underwriting Agreement. No approval or consent by any public regulatory body,
other than such order and notification of effectiveness by the Commission, is
legally required in connection with the sale of the Debt Securities as
contemplated by the Underwriting Agreement (except to the extent that compliance
with the provisions of securities or blue sky laws of certain states may be
required in connection with the sale of the Debt Securities in such states) and
the carrying out of the provisions of the Underwriting Agreement.]
Yours very truly,
MCGUIRE, WOODS, BATTLE
& BOOTHE LLP
-4-
<PAGE>
EXHIBIT 1(ii)
DOMINION RESOURCES, INC.
Preferred Stock
FORM OF UNDERWRITING AGREEMENT
[Date]
[Name of Underwriter]
as Representative for
the Several Underwriters
named in Schedule I hereto
[Address of Representative]
Ladies and Gentlemen:
Dominion Resources, Inc., a Virginia corporation (the Company), proposes to
issue and sell to the several Underwriters named in Schedule I hereto for whom
you are acting as Representative, _______ shares of its Series __ Preferred
Stock (the Firm Shares). The Company also proposes to issue and sell to the
several Underwriters not more than an additional _______ shares of Preferred
Stock (the Additional Shares) if and to the extent the Representative shall
have determined to exercise, on behalf of the Underwriters, the right to
purchase such shares of Preferred Stock granted to the Underwriters in Section I
hereof. The Firm Shares and the Additional Shares are hereinafter collectively
referred to as the Shares. The shares of Preferred Stock of the Company to be
outstanding after giving effect to the sales contemplated hereby are hereinafter
referred to as the Preferred Stock.
1. Underwriters and Representative. The term "Underwriters" as used herein
-------------------------------
shall be deemed to mean the several persons, firms or corporations (including
the Representative hereinafter mentioned) named in Schedule I hereto, and the
term "Representative" as used herein shall be deemed to mean the representative
to whom this Agreement is addressed, who by signing this Agreement represents
that it has been authorized by the other Underwriters to execute this Agreement
on their behalf and to act for them in the manner herein provided. If there
shall be only one person, firm or corporation named in Schedule I hereto, the
term "Underwriters" and the term "Representative" as used herein shall mean that
person, firm or corporation. All obligations of the
<PAGE>
Underwriters hereunder are several and not joint. Any action under or in respect
of this Agreement taken by the Representative will be binding upon all the
Underwriters.
2. Representations and Warranties of the Company. The Company represents and
---------------------------------------------
warrants to, and agrees with, the Underwriters that:
(a) A registration statement, No. 333-______ on Form S-3 for the
registration of the Shares and certain other securities of the Company under
the Securities Act of 1933, as amended (the Securities Act), heretofore filed
with the Securities and Exchange Commission (the Commission), a copy of which
as so filed has been delivered to you, has become effective. The registration
statement, including all exhibits thereto, as amended through the date hereof,
is hereinafter referred to as the "Registration Statement"; the prospectus
relating to the Shares included in the Registration Statement, which
prospectus is now proposed to be supplemented by a supplement relating to the
Shares to be filed with the Commission under the Securities Act, as so
supplemented, is hereinafter referred to as the "Prospectus". As used herein,
the terms "Registration Statement", "prospectus" and "Prospectus" include all
documents (including any Current Report on Form 8-K) incorporated therein by
reference, and shall include any documents (including any Current Report on
Form 8-K) filed after the date of such Registration Statement, prospectus or
Prospectus and incorporated therein by reference from the date of filing of
such incorporated documents (collectively, the Incorporated Documents).
(b) No order suspending the effectiveness of the Registration
Statement or otherwise preventing or suspending the use of the Prospectus has
been issued by the Commission and is in effect and no proceedings for that
purpose are pending before or, to the knowledge of the Company, threatened by
the Commission. The Registration Statement and the Prospectus comply in all
material respects with the provisions of the Securities Act, the Securities
Exchange Act of 1934, as amended (the Securities Exchange Act), and the rules,
regulations and releases of the Commission thereunder (the Rules and
Regulations) and, on the date hereof, neither the Registration Statement nor
the Prospectus 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, and, on the Closing Date, the Registration
Statement and the Prospectus (including any amendments and supplements
thereto) will conform in all respects to the requirements of the Securities
Act and the Rules and Regulations, and neither of such documents will include
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading; provided, that the foregoing representations and warranties in
this Section (b) shall not apply to statements in or omissions from the
Registration Statement or the Prospectus made in reliance upon information
furnished herein or in writing to the Company by the Underwriters or on the
Underwriters' behalf for use in the Registration Statement or Prospectus; and
provided, further, that the foregoing representations and warranties are given
on the basis that any
-2-
<PAGE>
statement contained in an Incorporated Document shall be deemed not to be
contained in the Registration Statement or Prospectus if the statement has
been modified or superseded by any statement in a subsequently filed
Incorporated Document or in the Registration Statement or Prospectus or in any
amendment or supplement thereto.
(c) Except as reflected in, or contemplated by, the Registration Statement
and Prospectus, since the respective most recent dates as of which information
is given in the Registration Statement and Prospectus, there has not been any
material adverse change in the condition of the Company, financial or
otherwise.
(d) The execution, delivery and performance of this Agreement and the
issuance and sale of the Shares will not result in a material breach or
violation of any of the terms and provisions of, or constitute a default
under, any statute, rule, regulation or order of any governmental agency or
body or any court having jurisdiction over the Company or any Significant
Subsidiary (as defined in Rule 1-01(w) of Regulation S-X) or any of their
properties or, to the best of such counsel's knowledge, any agreement or
instrument to which the Company is a party or by which the Company is bound or
to which any of the properties of the Company is subject, or the articles of
incorporation or bylaws of the Company, and the Company has full power and
authority to authorize, issue and sell the Shares as contemplated by this
Agreement.
(e) All of the issued and outstanding capital stock of each Significant
Subsidiary has been duly authorized and validly issued, is fully paid and
nonassessable, and,the capital stock of each Significant Subsidiary is owned
by the Company, directly or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, claim, encumbrance or equitable
right.
(f) The Shares have been duly authorized and, when issued and delivered in
accordance with the terms of this Agreement, will be validly issued, fully
paid and non-assessable, and the issuance of such Shares will not be subject
to any preemptive or similar rights.
[(g) The Preferred Stock (other than the Shares) is and, upon issuance
the Shares will be, listed on the New York Stock Exchange. Company will use
best efforts to complete listing of the shares on the New York Stock Exchange]
4. Public Offering. On the basis of the representations and warranties
---------------
herein contained, but subject to the terms and conditions in this Agreement set
forth, the Company agrees to sell to each of the several Underwriters, and each
Underwriter agrees, severally and not jointly, to purchase from the Company, at
the place and time hereinafter specified, the number of Shares set forth
opposite the name of such Underwriter in Schedule I hereto at a price of $_____
per share (the "Purchase Price").
-3-
<PAGE>
The Company is further advised by the Underwriters that the Shares are to be
offered by the Underwriters to the public initially at $______ a share (the
"Public Offering Price") and to certain dealers selected by the Representatives
at a price that represents a concession not in excess of $__.__ a share under
the Public Offering Price, and that any Underwriter may allow, and such dealers
may reallow, a concession, not in excess of $____ a share, to any Underwriter or
to certain other dealers. It is understood that after such initial offering the
several Underwriters reserve the right to vary the offering price and further
reserve the right to withdraw, cancel or modify such offering without notice.
(a) On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to sell
to the Underwriters the Additional Shares, and the Underwriters shall have a
one-time right to purchase, severally and not jointly, all or part of ________
the Additional Shares at the Purchase Price. Additional Shares may be purchased
as provided in Section 4 hereof solely for the purpose of covering over-
allotments made in connection with the offering of the Firm Shares. If any
Additional Shares are to be purchased, each Underwriter agrees, severally and
not jointly, to purchase the number of Additional Shares (subject to such
adjustments to eliminate fractional shares as the Representative may determine)
that bears approximately the same proportion to the total number of Additional
Shares to be purchased as the number of Firm Shares set forth in Schedule I
hereto opposite the name of such Underwriter bears to the total number of Firm
Shares.
(b) The Company hereby agrees that, without the prior written consent of the
Representative, it will not during the period ending 60 days after the date of
the Prospectus (i) offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase or otherwise transfer or dispose of, directly or
indirectly, or to register or announce the sale or offering of any shares of
Preferred Stock of the Company or any securities convertible into or exercisable
or exchangeable for such Preferred Stock or (ii) enter into any agreement that
transfers, in whole or in part, the economic consequences of ownership of such
Preferred Stock, whether any such transaction described in clause (i) or (ii)
above is to be settled by delivery of such Preferred Stock or such other
securities in cash or otherwise. The foregoing sentence shall not apply to (a)
the Shares to be sold hereunder; (b) the issuance by the Company of shares of
Preferred Stock upon the exercise of an option or warrant or the conversion of a
security outstanding on the date hereof of which the Underwriters have been
advised in writing.
5. Time and Place of Closing. Payment for the Firm Shares shall be made by
-------------------------
or on behalf of the several Underwriters by the wire transfer of immediately
available funds to the Company's account. Such payment shall be made upon
delivery of the Firm Shares to the Representative or upon its order at the
office of the Representative, [Address], at 10:00 A.M., New York City time, on
the third business day (unless postponed in accordance with the provisions of
Section 10) following the date of this Agreement, or if pricing takes place
after 4:30 P.M. New York time, on the fourth business day following the date of
this Agreement (unless postponed in accordance with
-4-
<PAGE>
the provisions of Section 10), or at such other time on the same or such other
earlier date, as shall be agreed upon by the Representative and the Company. The
time and date of such payment are hereinafter referred to as the Closing Date.
Payment for any Additional Shares shall be made by or on behalf of the several
Underwriters by the wire transfer of immediately available funds to the
Company's account. Such payment shall be made upon delivery of the Additional
Shares to the Representative or upon its order at the office of the
Representative, [Address], at 10:00 A.M., New York City time, on such date
(which may be the same as the Closing Date but shall in no event be earlier than
the Closing Date nor later than ten business days after the giving of the notice
hereinafter referred to) as shall be designated in a written notice from the
Representative to the Company of the Representative's determination, on behalf
of the Underwriters, to purchase a number, specified in said notice, of
Additional Shares, or on such other date, in any event not later than ______
200__, as shall be agreed upon by the Representative and the Company. The time
and date of such payment are hereinafter referred to as the Option Closing Date.
The notice of the determination to exercise the option to purchase Additional
Shares and of the Option Closing Date may be given at any time within 30 days
after the date of this Agreement.
Certificates for the Firm Shares and Additional Shares shall be in definitive
form and registered in such names and in such denominations as the
Representative shall request in writing not later than one full business day
prior to the Closing Date or the Option Closing Date, as the case may be. The
certificates evidencing the Firm Shares and Additional Shares shall be delivered
to the Representative on the Closing Date or the Option Closing Date, as the
case may be, for the respective accounts of the several Underwriters, with any
transfer taxes payable in connection with the transfer of the Shares to the
Underwriters duly paid, against payment of the Purchase Price therefor.
6. Covenants of the Company. The Company agrees that:
------------------------
(a) The Company, at or prior to the Closing Date, will deliver to the
Representative conformed copies of the Registration Statement as originally
filed, including all exhibits, any related preliminary prospectus supplement,
the Prospectus and all amendments and supplements to each such document, in
each case as soon as available and in such quantities as are reasonably
requested by the Representative.
(b) The Company will pay all expenses in connection with (i) the
preparation and filing by it of the Registration Statement and Prospectus and
the printing of this Agreement, (ii) the preparation, issue and delivery of
certificates for the Shares, (iii) the printing and delivery to the
Underwriters in reasonable quantities of copies of the Registration Statement
and the Prospectus (each as originally filed and as subsequently amended). The
Company also will pay all taxes, if any, except transfer taxes, on the issue
of the Shares. In addition,
-5-
<PAGE>
the Company will pay the reasonable out of pocket fees and disbursements of
Underwriters' outside counsel, [Underwriters' Counsel], in connection with the
qualification of the Shares under state securities or blue sky laws or
investment laws (if and to the extent such qualification is required by the
Underwriters or the Company).
(c) If, during the time when a prospectus relating to the Shares is
required to be delivered under the Act, any event occurs as a result of which
the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading, or if it is necessary at any time to amend the
Prospectus to comply with the Act, the Company promptly will (i) notify the
Representative to suspend solicitation of purchases of the Shares and (ii) at
its expense, prepare and file with the Commission an amendment or supplement
which will correct such statement or omission or an amendment which will
effect such compliance. In case any Underwriter is required to deliver a
prospectus in connection with the sale of any Shares after the expiration of
the period specified in the preceding sentence, the Company, upon the request
of the Representative, will furnish to the Representative, at the expense of
such Underwriter, a reasonable quantity of a supplemented or amended
prospectus, or supplements or amendments to the Prospectus, complying with
Section 10(a) of the Securities Act. During the period specified in the second
sentence of this Section 6(c), the Company will continue to prepare and file
with the Commission on a timely basis all documents or amendments required
under the Securities Exchange Act and the applicable rules and regulations of
the Commission thereunder; provided, that the Company shall not file such
documents or amendments without also furnishing copies thereof to the
Representative and [Underwriters' Counsel].
(d) The Company will advise the Representative promptly of any
proposal to amend or supplement the Registration Statement or the Prospectus
and will afford the Representative a reasonable opportunity to comment on any
such proposed amendment or supplement; and the Company will also advise the
Representative promptly of the filing of any such amendment or supplement and
of the institution by the Commission of any stop order proceedings in respect
of the Registration Statement or of any part thereof and will use its best
efforts to prevent the issuance of any such stop order and to obtain as soon
as possible its lifting, if issued.
(e) The Company will make generally available to its security holders,
as soon as it is practicable to do so, an earnings statement of the Company
(which need not be audited) in reasonable detail, covering a period of at
least 12 months beginning within three months after the effective date of the
Registration Statement, which earnings statement shall satisfy the
requirements of Section 11(a) of the Securities Act.
(f) The Company will furnish such proper information as may be
lawfully required
-6-
<PAGE>
and otherwise cooperate in qualifying the Shares for offer and sale under the
securities or blue sky laws of such states as the Representative may
designate; provided, however, that the Company shall not be required in any
state to qualify as a foreign corporation, or to file a general consent to
service of process, or to submit to any requirements which it deems unduly
burdensome.
(g) Fees and disbursements of [Underwriter Counsel]. who are acting as
counsel for the Underwriters (exclusive of fees and disbursements of such
counsel which are to be paid as set forth in Section 6(b)), shall be paid by
the Underwriters; provided, however, that if this Agreement is terminated in
accordance with the provisions of Sections 7 or 8 hereof, the Company shall
reimburse the Representative for the account of the Underwriters for the
amount of such fees and disbursements.
7. Conditions of Underwriters' Obligations; Termination by the Underwriters.
------------------------------------------------------------------------
(a) The obligations of the Underwriters to purchase and pay for the
Shares shall be subject to the following conditions:
(i) No stop order suspending the effectiveness of the
Registration Statement shall be in effect on the Closing Date and no
proceedings for that purpose shall be pending before, or to the
knowledge of the Company threatened by, the Commission on such date.
The Representative shall have received, prior to payment for the
Shares, a certificate dated the Closing Date and signed by the
Chairman of the Board, Chief Executive Officer, President or any
Executive or Senior Vice President of the Company to the effect that
no such stop order is in effect and that no proceedings for such
purpose are pending before or, to the knowledge of the Company,
threatened by the Commission.
(ii) At the Closing Date an order or orders of the Commission
pursuant to the Holding Company Act permitting the issuance and sale
of the Shares shall be in full force and effect and all provisions of
such order or orders heretofore entered are deemed acceptable to the
Representative and the Company, and all provisions of such order or
orders hereafter entered shall be deemed acceptable to the
Representative and the Company unless within 24 hours after receiving
a copy of any such order either shall give notice to the other to the
effect that such order contains an unacceptable provision.
(iii) At the Closing Date the Representative shall receive, on
behalf of the several Underwriters, the opinions of McGuire, Woods,
Battle & Boothe, LLP, counsel to the Company and [Underwriters'
Counsel], counsel
-7-
<PAGE>
to the Underwriters, substantially in the forms attached hereto as
Schedules II and III.
(iv) At the time of execution of this Agreement and as of the
Closing Date, the Representative shall have received letters, on
behalf of the Underwriteres dated as of the date hereof and as of the
Closing Date, in form and substance satisfactory to the
Representative, from the Company's independent public accountants,
containing statements and information of the type ordinarily included
in accountants' SAS 72 "comfort letters" to underwriters with respect
to the financial statements and certain financial information
contained in or incorporated by reference into the Prospectus.
(v) Subsequent to the execution of this Agreement and prior to
the Closing Date, (A) except as reflected in, or contemplated by, the
Registration Statement and the Prospectus, there shall not have
occurred (1) any change in the Shares of the Company (other than a
decrease in the aggregate number thereof outstanding), (2) any
material adverse change in the general affairs, financial condition or
earnings of the Company or (3) any material transaction entered into
by the Company other than a transaction in the ordinary course of
business, the effect of which in each such case in the judgment of the
Representative is so material and so adverse that it makes it
inadvisable to proceed with the public offering or delivery of the
Shares on the terms and in the manner contemplated in the Prospectus
and this Agreement, or (B) there shall not have occurred (1) a
downgrading in the rating accorded any of the Company's senior
securities by any "nationally recognized statistical rating
organization" (as that term is defined by the Commission for purposes
of Rule 436(g)(2) under the Securities Act), (2) any general
suspension of trading in securities on the New York Stock Exchange or
any limitation on prices for such trading or any restrictions on the
distribution of securities established by the New York Stock Exchange
or by the Commission or by any federal or state agency or by the
decision of any court, (3) a banking moratorium declared either by
federal or New York State authorities or (4) any outbreak or
escalation of major hostilities in which the Unites States is
involved, any declaration of war by the United States Congress or any
other substantial national or international calamity or crisis
resulting in the declaration of a national emergency, the effect of
which outbreak, escalation, declaration, calamity or crisis, in the
reasonable judgment of the Representative, makes it impracticable or
inadvisable to proceed with the public offering or delivery of the
Shares on the terms and in the manner contemplated in the Prospectus
and in this Agreement.
(vi) On the Closing Date, the representations and warranties of
the
-8-
<PAGE>
Company in this Agreement shall be true and correct as if made on
and as of such date, and the Company shall have performed all
obligations and satisfied all conditions required of it under this
Agreement; and, at the Closing Date, the Representative shall have
received a certificate to such effect signed by the Chairman of the
Board, Chief Executive Officer, President or any Executive or Senior
Vice President of the Company.
(vii) All legal proceedings to be taken in connection with the
issuance and sale of the Shares shall have been satisfactory in form
and substance to [Underwriters' Counsel].
(b) In case any of the conditions specified above in Section 7(a)
shall not have been fulfilled, this Agreement may be terminated by the
Representative upon mailing or delivering written notice thereof to the
Company; provided, however, that in case the conditions specified in
Section 7(a)(v) and (vi) shall not have been fulfilled, this Agreement may
not be so terminated by the Representative unless Underwriters who have
agreed to purchase in the aggregate greater than 50% or more of the
aggregate principal amount of the Shares shall have consented to such
termination and the aforesaid notice shall so state. Any such termination
shall be without liability of any party to any other party except as
otherwise provided in Section 9 and Sections 6(b), 6(g) and 7(c) hereof.
(c) If this Agreement shall be terminated by the Representative
pursuant to Section 7(b) above or because of any failure or refusal on
the part of the Company to comply with the terms or to fulfill any of the
conditions of this Agreement, or if for any reason the Company shall be
unable to perform its obligations under this Agreement, then in any such
case, the Company will reimburse the Underwriters, severally, for all out-
of-pocket expenses (in addition to the fees and disbursements of their
outside counsel as provided in Section 6(g)) reasonably incurred by such
Underwriters in connection with this Agreement or the offering
contemplated hereunder and, upon such reimbursement, the Company shall be
absolved from any further liability hereunder, except as provided in
Section 6(b) and Section 9.
(d) The several obligations of the Underwriters to purchase Additional
Shares hereunder are subject to the delivery to the Representative on the
Option Closing Date of such documents and opinions as the Representative
may reasonably request with respect to the good standing of the Company,
the due authorization and issuance of the Additional Shares and other
matters related to the issuance of the Additional Shares.
8. Conditions of the Obligation of the Company. The obligation of the
-------------------------------------------
Company to deliver the Shares shall be subject to the conditions set forth in
the first sentence of Section
-9-
<PAGE>
7(a)(i) and in section 7(a)(ii). In case said conditions shall not have been
fulfilled, this Agreement may be terminated by the Company by mailing or
delivering written notice thereof to the Representative. Any such termination
shall be without liability of any party to any other party except as otherwise
provided in Sections 6(b), 6(g), 9 and 10(c) hereof.
9. Indemnification. (a) The Company agrees to indemnify and hold harmless
---------------
each Underwriter and each person who controls any Underwriter within the meaning
of Section 15 of the Securities Act or Section 20(a) of the Securities Exchange
Act, against any and all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject under the Securities
Act, the Securities Exchange Act, or any other statute or common law and to
reimburse each such Underwriter and controlling person for any legal or other
expenses (including, to the extent hereinafter provided, reasonable outside
counsel fees) incurred by them in connection with investigating any such losses,
claims, damages, or liabilities, or in connection with defending any actions,
insofar as such losses, claims, damages, liabilities, expenses or actions arise
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus, or in
either such document as amended or supplemented (if any amendments or
supplements thereto shall have been furnished), or any Preliminary Prospectus
(if and when used prior to the effective date of the Registration Statement), or
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;
provided that the foregoing agreement, insofar as it relates to any Preliminary
Prospectus, shall not inure to the benefit of any Underwriter (or to the benefit
of any person who controls such Underwriter) on account of any losses, claims,
damages or liabilities arising out of the sale of any of the Shares by such
Underwriter to any person if it shall be established that a copy of the
Prospectus, excluding any documents incorporated by reference (as supplemented
or amended, if the Company shall have made any supplements or amendments which
have been furnished to the Representative), shall not have been sent or given by
or on behalf of such Underwriter to such person at or prior to the written
confirmation of the sale to such person in any case where such delivery is
required by the Securities Act, if the misstatement or omission leading to such
loss, claim, damage or liability was corrected in the Prospectus (excluding any
documents incorporated by reference) as amended or supplemented, and such
correction would have cured the defect giving rise to such loss, claim, damage,
or liability; and provided further, however, that the indemnity agreement
contained in this Section 9(a) shall not apply to any such losses, claims,
damages, liabilities, expenses or actions arising out of or based upon any such
untrue statement or alleged untrue statement, or any such omission or alleged
omission, if such statement or omission was made in reliance upon information
furnished herein or otherwise in writing to the Company by or on behalf of any
Underwriter for use in the Registration Statement or any amendment thereto, in
the Prospectus or any supplement thereto, or in any Preliminary Prospectus. The
indemnity agreement of the Company contained in this Section 9(a) and the
representations and warranties of the Company contained in Section 3 hereof
shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or any such controlling
person, and shall survive the delivery of the Shares.
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<PAGE>
(b) Each Underwriter agrees, severally and not jointly, to indemnify and hold
harmless the Company, its officers and directors, each other Underwriter, and
each person who controls any thereof within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Securities Exchange Act, against any and
all losses, claims, damages or liabilities, joint or several, to which they or
any of them may become subject under the Securities Act, the Securities Exchange
Act, or any other statute or common law and to reimburse each of them for any
legal or other expenses (including, to the extent hereinafter provided,
reasonable outside counsel fees) incurred by them in connection with
investigating any such losses, claims, damages or liabilities or in connection
with defending any actions, insofar as such losses, claims, damages,
liabilities, expenses or actions arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus, or in either such document as amended
or supplemented (if any amendments or supplements thereto shall have been
furnished), or any Preliminary Prospectus (if and when used prior to the
effective date of the Registration Statement), or 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, if such statement or
omission was made in reliance upon information furnished herein or in writing to
the Company by or on behalf of such Underwriter for use in the Registration
Statement or the Prospectus or any amendment or supplement to either thereof, or
any Preliminary Prospectus. The indemnity agreement of the respective
Underwriters contained in this Section 9(b) shall remain operative and in full
force and effect, regardless of any investigation made by or on behalf of the
Company, or any such other Underwriter or any such controlling person, and shall
survive the delivery of the Shares.
(c) The Company and each of the Underwriters agrees that, upon the receipt of
notice of the commencement of any action against the Company or any of its
officers or directors, or any person controlling the Company, or against such
Underwriter or controlling person as aforesaid, in respect of which indemnity
may be sought on account of any indemnity agreement contained herein, it will
promptly give written notice of the commencement thereof to the party or parties
against whom indemnity shall be sought hereunder, but the omission so to notify
such indemnifying party or parties of any such action shall not relieve such
indemnifying party or parties from any liability which it or they may have to
the indemnified party otherwise than on account of such indemnity agreement. In
case such notice of any such action shall be so given, such indemnifying party
shall be entitled to participate at its own expense in the defense or, if it so
elects, to assume (in conjunction with any other indemnifying parties) the
defense of such action, in which event such defense shall be conducted by
counsel chosen by such indemnifying party (or parties) and satisfactory to the
indemnified party or parties who shall be defendant or defendants in such
action, and such defendant or defendants shall bear the fees and expenses of any
additional outside counsel retained by them; provided that, if the defendants in
any such action include both the indemnified party and the indemnifying party
(or parties) and the indemnified party shall have reasonably concluded that
there may be legal defenses available to it and/or other indemnified parties
which are different from or additional to those available to the indemnifying
party (or parties), the indemnified party shall have the right to select
separate counsel to assert such legal defenses and to participate otherwise in
the defense of such action on behalf of such indemnified party. The
indemnifying party shall bear the reasonable fees and expenses of outside
counsel retained by the
-11-
<PAGE>
indemnified party if (i) the indemnified party shall have retained such counsel
in connection with the assertion of legal defenses in accordance with the
proviso to the preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel, representing the indemnified parties under Section 9(a) or
9(b), as the case may be, who are parties to such action), (ii) the indemnifying
party shall have elected not to assume the defense of such action, (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the commencement of the action, or (iv) the indemnifying party
has authorized the employment of counsel for the indemnified party at the
expense of the indemnifying party. Notwithstanding the foregoing sentence, an
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent (such consent not to be unreasonably
withheld), but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
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 indemnification may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such a proceeding), 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) If the indemnification provided for in this Section 9 is unavailable to
or insufficient to hold harmless an indemnified party in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is appropriate
to reflect the relative fault of the Company, on the one hand, and of the
Underwriters, on the other, in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations, including
relative benefit. The relative fault 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 required to be
stated therein or necessary in order to make the statements therein not
misleading relates to information supplied by the Company on the one hand or by
you on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and you agree that it would not be just and equitable if
contribution pursuant to this Section 9(d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above in this Section 9(d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in this
Section 9(d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. 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 who was not
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<PAGE>
guilty of such fraudulent misrepresentation. The Underwriters' obligations under
this Section 9(d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
10. Termination by the Company. If any one or more of the Underwriters shall
--------------------------
fail or refuse to purchase the Shares which it or they have agreed to purchase
hereunder, and the aggregate principal amount of the Shares which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
is not more than one-tenth of the aggregate principal amount of the Shares, then
the other Underwriters shall be obligated severally in the proportions which the
principal amount of the Shares set forth opposite their respective names in
Schedule I bears to the aggregate underwriting obligations of all non-defaulting
Underwriters, or in such other proportions as the Underwriters may specify, to
purchase the Shares which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase. If any Underwriter or Underwriters shall so fail
or refuse to purchase Shares and the aggregate principal amount of the Shares
with respect to which such default occurs is more than one-tenth of the
aggregate principal amount of the Shares and arrangements satisfactory to the
Underwriters and the Company for the purchase of such Shares are not made within
36 hours after such default, this Agreement will terminate without liability on
the part of any non-defaulting Underwriter (except as provided in Section 6(g)
and Section 9) or of the Company (except as provided in Section 6(b) and Section
9). In any such case not involving a termination, either the Representative or
the Company shall have the right to postpone the Closing Date, but in no event
for longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this Section 10 shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
11. Representations, Warranties and Agreements to Survive Delivery. All
--------------------------------------------------------------
representations, warranties and agreements contained in this Agreement or
contained in certificates of officers of the Company submitted pursuant hereto
shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of any Underwriter or any controlling person
of any Underwriter, or by or on behalf of the Company, and shall survive
delivery of the Shares.
12. Miscellaneous. The validity and interpretation of this Agreement shall
-------------
be governed by the laws of the State of New York. This Agreement shall inure to
the benefit of the Company, the Underwriters and, with respect to the provisions
of Section 9 hereof, each controlling person and each officer and director of
the Company referred to in Section 9, and their respective successors, assigns,
executors and administrators. Nothing in this Agreement is intended or shall be
construed to give to any other person, firm or corporation any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. The term "successors" as used in this Agreement
shall not include any purchaser, as such, of any of the Shares from any of the
several Underwriters.
13. Notices. All communications hereunder shall be in writing and if to the
-------
Underwriters
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<PAGE>
shall be mailed, telexed, telecopied or delivered to the Representative at the
address set forth on Schedule I hereto, or if to the Company shall be mailed,
telexed, telecopied or delivered to it, attention of Treasurer, Dominion
Resources, Inc., 120 Tredegar Street, Richmond, Virginia 23219.
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<PAGE>
Please sign and return to us a counterpart of this letter, whereupon this
letter will become a binding agreement between the Company and the several
Underwriters in accordance with its terms.
DOMINION RESOURCES, INC.
By:
---------------------------------
Title:
The foregoing agreement is
hereby confirmed and accepted,
as of the date first above
written.
[Name of Representative]
By:
--------------------------------
Title:
Acting individually and on
behalf of the other several
Underwriters named in
Schedule I hereto.
-15-
<PAGE>
SCHEDULE I
- --------------------------------------------------------------------------------
Underwriter Number of Firm Shares To Be Purchased
- ----------- -------------------------------------
- --------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
Total
-16-
<PAGE>
SCHEDULE II
PROPOSED FORM OF OPINION
OF
MCGUIRE, WOODS, BATTLE & BOOTHE LLP
One James Center
901 East Cary Street
Richmond, Virginia 23219
______, 200_
[Name of Underwriter]
as Representative for
the Several Underwriters
named in Schedule I hereto
[Address of Representative]
Re: Dominion Resources Inc. Preferred Stock Offering
Ladies and Gentlemen:
We have acted as counsel to Dominion Resources, Inc., a Virginia
corporation (the "Company"), in connection with the issuance and sale by the
Company of ____ shares (the "Shares") of its preferred stock pursuant to an
underwriting agreement dated ____________, 200__ (the "Underwriting Agreement")
among the Company and ____________ (the "Underwriters"), and the several other
underwriters named therein. This opinion is rendered pursuant to the provisions
of Section 7(a)(iii) of the Underwriting Agreement, and, except a set forth
herein, the terms used herein which are defined in the Underwriting Agreement
have the same meanings as they have in the Underwriting Agreement.
We have examined the Underwriting Agreement, a specimen certificate for the
Preferred stock, the Articles of Incorporation and the By-laws of the Company
and such other corporate records of the Company, agreements and other
instruments, certificates of public officials, certificates of officers and
representatives of the Company, and other documents and have conducted such
other investigations of facts and law as we have deemed necessary or advisable
for purposes of this opinion. 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. Whenever the phrases "to our
knowledge" or "known to us" are used herein, they refer to the actual knowledge
of the attorneys of this firm generally involved in the representation of the
Company.
<PAGE>
To each of the persons on
Schedule I attached hereto
___, 200_
Page 2
For purposes of the opinions expressed below, we have assumed (i) the
authenticity of all documents submitted to us as originals, (ii) the conformity
to the originals of all documents submitted as certified or photostatic copies
and the authenticity of the originals of such copies, (iii) the genuineness of
signatures not witnessed by us, (iv) the legal capacity of natural persons, and
(v) the due authorization, execution and delivery of all documents by all
parties and the validity and binding effect thereof (other than the
authorization, execution and delivery of documents by the Company, and the
validity and binding effect upon the Company).
Based upon and subject to the foregoing as well as the qualifications
hereinafter set forth, we are of the opinion that:
(A) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the Commonwealth of
Virginia, has the corporate power and authority to own, lease and operate
its property and to conduct its business as described in the Prospectus and
to enter into and perform its obligations under this Agreement; and is duly
qualified as a foreign corporation in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires
such qualification, except to the extent that the failure to be so
qualified would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(B) Each of [Insert Names of Significant Subsidiaries] has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the respective jurisdiction of their organization.
(C) The execution and delivery by the Company of the Underwriting
Agreement and the performance by the Company of its obligations thereunder
have been duly authorized by all necessary corporate action on the part of
the Company; and the Underwriting Agreement has been duly executed and
delivered by the Company.
(D) The Preferred stock of the Company conforms in all material
respects to the description thereof in the Prospectus.
(E) The Shares have been duly authorized and are validly issued,
fully paid and non-assessable. The Shares are not subject to any preemptive
or similar rights. The Shares have been duly authorized for listing on the
New York Stock Exchange (the "NYSE").
(F) The execution and delivery by the Company of, and the performance
by the Company of its obligations under, the Underwriting Agreement and the
issuance and sale by the Company of the Shares do not and will not
contravene the Articles of Incorporation or the By-laws of the Company
<PAGE>
To each of the persons on
Schedule I attached hereto
___, 200_
Page 3
or any provision of any law of the Commonwealth of Virginia, the State of
New York or U.S. federal law or, to our knowledge, any judgment, order or
decree of any U.S. federal court or government agency or any court or
government agency of the State of New York or the Commonwealth of Virginia
having jurisdiction over the Company. No approval, authorization or consent
of any U.S. federal, New York, or Virginia court or governmental authority
or agency is required in connection with the consummation by the Company of
the transactions contemplated by the Underwriting Agreement, except such as
have been obtained or will have been obtained prior to the Closing Date or
as may be required under state securities laws.
(G) To the best of our knowledge, there are no actions, suits or
proceedings pending or threatened to which the Company is a party or to
which any of its properties is subject other than any proceedings described
in the Prospectus and proceedings which we believe are not likely to have a
material adverse effect on the power or ability of the Company to perform
its obligations under the Underwriting Agreement or to consummate the
transactions contemplated thereby or by the Prospectus.
(H) We have reviewed the Registration Statement and Prospectus and
participated in conferences with officers and other representatives of the
Company, representatives of the independent public accountants for the
Company and with your representatives and representatives of your counsel
at which conferences the contents of the Registration Statement and
Prospectus and related matters were discussed and have also reviewed
certain corporate records, documents and proceedings, and, although we are
not passing upon and do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Prospectus
(except to the extent set forth in paragraphs (I) below and (D) above), on
the basis of the foregoing, no facts have come to our attention which have
led us to believe that, as of its effective date, the Registration
Statement contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading or that, as of its date or the
Closing Date, the Prospectus contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading (except that we express no comment or belief
with respect to the financial statements and schedules and other financial
or statistical information contained in the Registration Statement or
Prospectus).
(I) [The statements in (A) the Prospectus under the captions
"Virginia Stock Corporation Act and the Articles and By-laws" and
"Description of Capital Stock -- Preferred stock," and (B) in the
Registration Statement in Item 15, insofar as such statements constitute a
summary of the legal matters, documents or
<PAGE>
To each of the persons on
Schedule I attached hereto
___, 200_
Page 4
proceedings referred to therein, fairly summarize the matters referred to
therein in all material respects (except that we express no comment or
belief with respect to the financial statements and schedules and other
financial or statistical information contained in the Registration
Statement or Prospectus).]
(J) Each of the Registration Statement and the Prospectus, when it
became effective or was filed with the Commission, as the case may be,
appeared on its face to be appropriately responsive in all material
respects to the requirements of the Act and the rules and regulations of
the Commission thereunder (except that we express no comment or belief with
respect to the financial statements and schedules and other financial or
statistical information contained in the Registration Statement or
Prospectus).
(K) The form of the certificate for the Shares conforms in all
material respects to the requirements of the Virginia Stock Corporation Act
and the NYSE.
(L) The Company is not, and following consummation of the
transactions contemplated by the Underwriting Agreement will not be, an
"investment company" or a company "controlled" by an "investment company"
which is required to be registered under the Investment Company Act of
1940, as amended.
(M) [The Company is a registered "holding company" within the meaning
of that term as defined in the Public Utility Holding Company Act of 1935,
as amended.]
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. [Underwriters Counsel] may rely on this opinion in connection with the
opinions they are delivering on the date hereof with respect to the matters set
forth herein to the extent that such opinion involves matters governed by the
laws of the Commonwealth of Virginia. Our opinion in paragraph (F) as to non-
contravention of the laws of the State of New York is based upon a review of
those laws and statutes which, in our experience, are normally applicable to
transactions of the type contemplated by the Underwriting Agreement. We do not
express any opinion herein on whether the provisions of the Underwriting
Agreement regarding rights to indemnity and contribution contravene or are
limited by federal or state securities laws or public policy.
This opinion letter may not be relied upon by, nor may copies be delivered
to, any person without our prior written consent.
Very truly yours,
<PAGE>
SCHEDULE III
PROPOSED FORM OF OPINION
OF
UNDERWRITER'S COUNSEL
[DATE]
[Name of Underwriter]
as Representative for the
Several Underwriters named
in Schedule I hereto
[Address of Representative]
Re: Dominion Resources Inc.--Offering of _______ Shares
of Preferred Stock
Ladies and Gentlemen:
We have acted as counsel for you (the "Underwriters") in connection with
the purchase today by you severally of _______ shares (the "Shares") of the
preferred stock of Dominion Resources, Inc., a Virginia corporation (the
"Company"), pursuant to the terms of an underwriting agreement dated
____________, 200__ (the "Underwriting Agreement") among the Company and you.
This letter is being delivered to you pursuant to the provisions of Section
7(a)(iii) of the Underwriting Agreement. Terms used in this letter which are not
defined herein but which are defined, either directly or by cross-reference, in
the Underwriting Agreement are used herein with the respective meanings assigned
to such terms in the Underwriting Agreement.
In connection therewith, we have examined (a) the Registration Statement on
Form S-3 (Registration No. _______________ thereto, filed by the Company with
the Securities and Exchange Commission (the "Commission") under the Securities
Act of 1933, as amended (the "Act"), relating to the registration of the Shares,
as it became effective under the Act (such Registration Statement, as so amended
and including documents incorporated therein by reference, being hereinafter
referred to as the "Registration Statement"), (b) the Company's Prospectus
Supplement, dated ___________, 2000, as filed in final form with the Commission
on ______________, 200_ pursuant to Rule 424(b) under the Act (such Prospectus
Supplement, together with the Prospectus included as part of the Registration
Statement and documents incorporated therein by reference, the "Prospectus", (c)
executed counterparts of the Underwriting
<PAGE>
[Underwriter Representative
[Date]
Page 2
Agreement, (d) a copy of the Articles of Incorporation of the Company, (e) a
copy of the By-Laws of the Company, (f) a specimen certificate for the Preferred
Stock and (g) a record of corporate proceedings of the Company relating to the
authorization of the public offering, including the execution and delivery of
the Underwriting Agreement. In addition, we have examined certificates of public
officials and the originals (or copies certified or otherwise identified to our
satisfaction) of such other agreements, certificates, documents and records and
have reviewed such questions of law as we have deemed necessary or appropriate
for the purposes of the opinions rendered herein.
In such examination, we have assumed, without inquiry, the genuineness of
all signatures on all documents examined by us, the authenticity of all
documents submitted to us as originals, the conformity to authentic original
documents of all documents submitted to us as copies and the authenticity of the
originals of such latter documents. In addition, we have assumed, without
inquiry, that the Underwriting Agreement has been duly authorized, executed and
delivered by all parties other than the Company, and that the certificates
representing the Shares being issued on the date hereof conform in all respects
to the specimens examined by us. As to any facts material to our opinion, we
have, when relevant facts were not independently established, relied on the
aforesaid agreements, instruments, certificates, documents and records.
Based on the foregoing, and subject to the qualifications, assumptions and
limitations stated herein, we are of the opinion that:
(i) The Company is validly existing as a corporation in good
standing under the laws of the Commonwealth of Virginia;
(ii) The Underwriting Agreement has been duly authorized, executed
and delivered by the Company;
(iii) the Shares have been duly authorized and are validly issued,
fully paid and non-assessable; and
(iv) "The statements in the Prospectus under the captions
"Description of Capital Stock -- Preferred Stock" and "Underwriters,"
insofar as such statements constitute a summary of the legal matters,
documents or proceedings referred to therein, fairly summarize the matters
referred to therein in all material respects.
As your counsel, we have reviewed the Registration Statement and
Prospectus, participating in discussions with representatives of the
Underwriters and of the Company and its accountants at which contents of the
Registration Statement and Prospectus and related matters were discussed. We
did not participate in the preparation of the Registration Statement (other than
the Prospectus Supplement) or any of the documents (other than the Underwriting
Agreement) incorporated by reference therein. Although we are not passing upon,
and do not assume any responsibility for, the accuracy,
<PAGE>
[Underwriter Representative
[Date]
Page 3
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus (except as described in paragraph (iv) hereof),
based on the foregoing, no facts have come to our attention in the course of
such review which have led us to believe that, as of its effective date, the
Registration Statement (other than the financial statements and the financial,
accounting and statistical data and related schedules incorporated by reference
or included therein or excluded therefrom, as to which we express no opinion)
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading or that, as of its date or the date hereof, the Prospectus (other
than the financial statements and financial, accounting and statistical data and
related schedules incorporated by reference or included therein or excluded
therefrom, as to which we express no opinion) contained or contains an untrue
statement of a material fact or omitted or omits to state a material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
The opinions rendered herein are limited to the laws of the State of New
York and the Federal law of the United States. In rendering the foregoing
opinions, we have, with your consent, relied solely upon the opinion of McGuire,
Woods, Battle & Boothe LLP, dated the date hereof and addressed to you, as to
all matters under the laws of the Commonwealth of Virginia, and our opinions
rendered herein as to such matters are subject to the same qualifications,
assumptions and limitations as are set forth in such opinion.
This letter and the opinions rendered herein are furnished by us as counsel
to you in connection with the transactions contemplated by the Underwriting
Agreement and solely for your benefit and may not be delivered to or relied upon
in any manner by any other person or entity without our express written consent.
Very truly yours,
<PAGE>
EXHIBIT 1(iii)
DOMINION RESOURCES, INC.
Common Stock
FORM OF UNDERWRITING AGREEMENT
[Date]
[Name of Underwriter]
as Representative for
the Several Underwriters
named in Schedule I hereto
[Address of Representative]
Ladies and Gentlemen:
Dominion Resources, Inc., a Virginia corporation (the Company), proposes to
issue and sell to the several Underwriters named in Schedule I hereto for whom
you are acting as Representative, _______ shares of its common stock (no par
value) (the Firm Shares). The Company also proposes to issue and sell to the
several Underwriters not more than an additional _______ shares of its common
stock (no par value) (the Additional Shares) if and to the extent the
Representative shall have determined to exercise, on behalf of the Underwriters,
the right to purchase such shares of common stock granted to the Underwriters in
Section I hereof. The Firm Shares and the Additional Shares are hereinafter
collectively referred to as the Shares. The shares of common stock (no par
value) of the Company to be outstanding after giving effect to the sales
contemplated hereby are hereinafter referred to as the Common Stock.
1. Underwriters and Representative. The term "Underwriters" as used herein
-------------------------------
shall be deemed to mean the several persons, firms or corporations (including
the Representative hereinafter mentioned) named in Schedule I hereto, and the
term "Representative" as used herein shall be deemed to mean the representative
to whom this Agreement is addressed, who by signing this Agreement represents
that it has been authorized by the other Underwriters to execute this Agreement
on their behalf and to act for them in the manner herein provided. If there
shall be only one person, firm or corporation named in Schedule I hereto, the
term "Underwriters" and the term "Representative" as used herein shall mean that
person, firm or corporation. All obligations of the
<PAGE>
Underwriters hereunder are several and not joint. Any action under or in respect
of this Agreement taken by the Representative will be binding upon all the
Underwriters.
2. Representations and Warranties of the Company. The Company represents and
---------------------------------------------
warrants to, and agrees with, the Underwriters that:
(a) A registration statement, No. 333-______ on Form S-3 for the
registration of the Shares and certain other securities of the Company under
the Securities Act of 1933, as amended (the Securities Act), heretofore filed
with the Securities and Exchange Commission (the Commission), a copy of which
as so filed has been delivered to you, has become effective. The registration
statement, including all exhibits thereto, as amended through the date hereof,
is hereinafter referred to as the "Registration Statement"; the prospectus
relating to the Shares included in the Registration Statement, which
prospectus is now proposed to be supplemented by a supplement relating to the
Shares to be filed with the Commission under the Securities Act, as so
supplemented, is hereinafter referred to as the "Prospectus". As used herein,
the terms "Registration Statement", "prospectus" and "Prospectus" include all
documents (including any Current Report on Form 8-K) incorporated therein by
reference, and shall include any documents (including any Current Report on
Form 8-K) filed after the date of such Registration Statement, prospectus or
Prospectus and incorporated therein by reference from the date of filing of
such incorporated documents (collectively, the Incorporated Documents).
(b) No order suspending the effectiveness of the Registration
Statement or otherwise preventing or suspending the use of the Prospectus has
been issued by the Commission and is in effect and no proceedings for that
purpose are pending before or, to the knowledge of the Company, threatened by
the Commission. The Registration Statement and the Prospectus comply in all
material respects with the provisions of the Securities Act, the Securities
Exchange Act of 1934, as amended (the Securities Exchange Act), and the rules,
regulations and releases of the Commission thereunder (the Rules and
Regulations) and, on the date hereof, neither the Registration Statement nor
the Prospectus 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, and, on the Closing Date, the Registration
Statement and the Prospectus (including any amendments and supplements
thereto) will conform in all respects to the requirements of the Securities
Act and the Rules and Regulations, and neither of such documents will include
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading; provided, that the foregoing representations and warranties in
this Section (b) shall not apply to statements in or omissions from the
Registration Statement or the Prospectus made in reliance upon information
furnished herein or in writing to the Company by the Underwriters or on the
Underwriters' behalf for use in the Registration Statement or Prospectus; and
provided, further, that the foregoing representations and warranties are given
on the basis that any
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<PAGE>
statement contained in an Incorporated Document shall be deemed not to be
contained in the Registration Statement or Prospectus if the statement has
been modified or superseded by any statement in a subsequently filed
Incorporated Document or in the Registration Statement or Prospectus or in any
amendment or supplement thereto.
(c) Except as reflected in, or contemplated by, the Registration
Statement and Prospectus, since the respective most recent dates as of which
information is given in the Registration Statement and Prospectus, there has
not been any material adverse change in the condition of the Company,
financial or otherwise.
(d) The execution, delivery and performance of this Agreement and the
issuance and sale of the Shares will not result in a material breach or
violation of any of the terms and provisions of, or constitute a default
under, any statute, rule, regulation or order of any governmental agency or
body or any court having jurisdiction over the Company or any Significant
Subsidiary (as defined in Rule 1-01(w) of Regulation S-X) or any of their
properties or, any agreement or instrument to which the Company is
a party or by which the Company is bound or to which any of the properties of
the Company is subject, or the articles of incorporation or bylaws of the
Company, and the Company has full power and authority to authorize, issue and
sell the Shares as contemplated by this Agreement.
(e) All of the issued and outstanding capital stock of each
Significant Subsidiary has been duly authorized and validly issued, is fully
paid and nonassessable, and,the capital stock of each Significant Subsidiary
is owned by the Company, directly or through subsidiaries, free and clear of
any security interest, mortgage, pledge, lien, claim, encumbrance or equitable
right.
(f) The Shares have been duly authorized and, when issued and
delivered in accordance with the terms of this Agreement, will be validly
issued, fully paid and non-assessable, and the issuance of such Shares will
not be subject to any preemptive or similar rights.
(g) The Common Stock (other than the Shares) is and, upon issuance the
Shares will be, listed on the New York Stock Exchange.
4. Public Offering. On the basis of the representations and warranties
---------------
herein contained, but subject to the terms and conditions in this Agreement set
forth, the Company agrees to sell to each of the several Underwriters, and each
Underwriter agrees, severally and not jointly, to purchase from the Company, at
the place and time hereinafter specified, the number of Shares set forth
opposite the name of such Underwriter in Schedule I hereto at a price of $_____
per share (the "Purchase Price").
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<PAGE>
Company is further advised by the Underwriters that the Shares are to be offered
by the Underwriters to the public initially at $______ a share (the "Public
Offering Price") and to certain dealers selected by the Representatives at a
price that represents a concession not in excess of $____ a share under the
Public Offering Price, and that any Underwriter may allow, and such dealers may
reallow, a concession, not in excess of $____ a share, to any Underwriter or to
certain other dealers. It is understood that after such initial offering the
several Underwriters reserve the right to vary the offering price and further
reserve the right to withdraw, cancel or modify such offering without notice.
(a) On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to sell
to the Underwriters the Additional Shares, and the Underwriters shall have a
one-time right to purchase, severally and not jointly, all or part of _______
the Additional Shares at the Purchase Price. Additional Shares may be purchased
as provided in Section 4 hereof solely for the purpose of covering over-
allotments made in connection with the offering of the Firm Shares. If any
Additional Shares are to be purchased, each Underwriter agrees, severally and
not jointly, to purchase the number of Additional Shares (subject to such
adjustments to eliminate fractional shares as the Representative may determine)
that bears approximately the same proportion to the total number of Additional
Shares to be purchased as the number of Firm Shares set forth in Schedule I
hereto opposite the name of such Underwriter bears to the total number of Firm
Shares.
(b) The Company hereby agrees that, without the prior written consent of the
Representative, it will not during the period ending 60 days after the date of
the Prospectus (i) offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase or otherwise transfer or dispose of, directly or
indirectly, or to register or announce the sale or offering of any shares of
common stock of the Company or any securities convertible into or exercisable or
exchangeable for such common stock or (ii) enter into any agreement that
transfers, in whole or in part, the economic consequences of ownership of such
common stock, whether any such transaction described in clause (i) or (ii) above
is to be settled by delivery of such common stock or such other securities in
cash or otherwise. The foregoing sentence shall not apply to (a) the Shares to
be sold hereunder; (b) the issuance by the Company of shares of common stock
upon the exercise of an option or warrant or the conversion of a security
outstanding on the date hereof of which the Underwriters have been advised in
writing; (c) the issuance or grant of shares of common stock or options or
rights to purchase shares of common stock pursuant to benefit and compensation
plans, these plans include but are not limited to: DRI Subsidiary Savings Plan,
Dominion Resources Inc. Incentive Compensation Plan, Dominion Resources Inc.
Stock Accumulation Plan for Outside Directors, and Dominion Resources, Inc.
Employee Savings Plan in amounts and on terms consistent with those plans; (d)
the issuance or grant of shares of common stock or options or rights to purchase
shares of common stock in connection with the Company's Dominion Direct
Investment Plan; and (e) agreements or arrangements in connection with
acquisition transactions involving the issuance or sale of shares of common
stock or relating to options, rights, warrants or any securities convertible
into or exercisable or exchangeable for shares
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<PAGE>
of common stock, where the acquisition transactions are consummated more than 60
days after the date of the Prospectus.
5. Time and Place of Closing. Payment for the Firm Shares shall be made by
-------------------------
or on behalf of the several Underwriters by the wire transfer of immediately
available funds to the Company's account. Such payment shall be made upon
delivery of the Firm Shares to the Representative or upon its order at the
office of the Representative, [Address], at 10:00 A.M., New York City time, on
the third business day (unless postponed in accordance with the provisions of
Section 10) following the date of this Agreement, or if pricing takes place
after 4:30 P.M. New York time, on the fourth business day following the date of
this Agreement (unless postponed in accordance with the provisions of Section
10), or at such other time on the same or such other earlier date, as shall be
agreed upon by the Representative and the Company. The time and date of such
payment are hereinafter referred to as the Closing Date.
Payment for any Additional Shares shall be made by or on behalf of the several
Underwriters by the wire transfer of immediately available funds to the
Company's account. Such payment shall be made upon delivery of the Additional
Shares to the Representative or upon its order at the office of the
Representative, [Address], at 10:00 A.M., New York City time, on such date
(which may be the same as the Closing Date but shall in no event be earlier than
the Closing Date nor later than ten business days after the giving of the notice
hereinafter referred to) as shall be designated in a written notice from the
Representative to the Company of the Representative's determination, on behalf
of the Underwriters, to purchase a number, specified in said notice, of
Additional Shares, or on such other date, in any event not later than ______
200__, as shall be agreed upon by the Representative and the Company. The time
and date of such payment are hereinafter referred to as the Option Closing Date.
The notice of the determination to exercise the option to purchase Additional
Shares and of the Option Closing Date may be given at any time within 30 days
after the date of this Agreement.
Certificates for the Firm Shares and Additional Shares shall be in definitive
form and registered in such names and in such denominations as the
Representative shall request in writing not later than one full business day
prior to the Closing Date or the Option Closing Date, as the case may be. The
certificates evidencing the Firm Shares and Additional Shares shall be delivered
to the Representative on the Closing Date or the Option Closing Date, as the
case may be, for the respective accounts of the several Underwriters, with any
transfer taxes payable in connection with the transfer of the Shares to the
Underwriters duly paid, against payment of the Purchase Price therefor.
6. Covenants of the Company. The Company agrees that:
------------------------
(a) The Company, at or prior to the Closing Date, will deliver to the
Representative conformed copies of the Registration Statement as originally
filed, including all exhibits,
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<PAGE>
any related preliminary prospectus supplement, the Prospectus and all amendments
and supplements to each such document, in each case as soon as available and in
such quantities as are reasonably requested by the Representative.
(b) The Company will pay all expenses in connection with (i) the
preparation and filing by it of the Registration Statement and Prospectus and
the printing of this Agreement, (ii) the preparation, issue and delivery of
certificates for the Shares, (iii) the printing and delivery to the Underwriters
in reasonable quantities of copies of the Registration Statement and the
Prospectus (each as originally filed and as subsequently amended). The Company
also will pay all taxes, if any, except transfer taxes, on the issue of the
Shares. In addition, the Company will pay the reasonable out of pocket fees and
disbursements of Underwriters' outside counsel, [Underwriters' Counsel], in
connection with the qualification of the Shares under state securities or blue
sky laws or investment laws (if and to the extent such qualification is required
by the Underwriters or the Company).
(c) If, during the time when a prospectus relating to the Shares is
required to be delivered under the Act, any event occurs as a result of which
the Prospectus as then amended or supplemented would include an untrue statement
of a material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it is necessary at any time to amend the Prospectus
to comply with the Act, the Company promptly will (i) notify the Representative
to suspend solicitation of purchases of the Shares and (ii) at its expense,
prepare and file with the Commission an amendment or supplement which will
correct such statement or omission or an amendment which will effect such
compliance. In case any Underwriter is required to deliver a prospectus in
connection with the sale of any Shares after the expiration of the period
specified in the preceding sentence, the Company, upon the request of the
Representative, will furnish to the Representative, at the expense of such
Underwriter, a reasonable quantity of a supplemented or amended prospectus, or
supplements or amendments to the Prospectus, complying with Section 10(a) of the
Securities Act. During the period specified in the second sentence of this
Section 6(c), the Company will continue to prepare and file with the Commission
on a timely basis all documents or amendments required under the Securities
Exchange Act and the applicable rules and regulations of the Commission
thereunder; provided, that the Company shall not file such documents or
amendments without also furnishing copies thereof to the Representative and
[Underwriters' Counsel].
(d) The Company will advise the Representative promptly of any proposal to
amend or supplement the Registration Statement or the Prospectus and will afford
the Representative a reasonable opportunity to comment on any such proposed
amendment or supplement; and the Company will also advise the Representative
promptly of the filing of any such amendment or supplement and of the
institution by the Commission of any stop order proceedings in respect of the
Registration Statement or of any part thereof and will
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<PAGE>
use its best efforts to prevent the issuance of any such stop order and to
obtain as soon as possible its lifting, if issued.
(e) The Company will make generally available to its security holders, as
soon as it is practicable to do so, an earnings statement of the Company (which
need not be audited) in reasonable detail, covering a period of at least 12
months beginning within three months after the effective date of the
Registration Statement, which earnings statement shall satisfy the requirements
of Section 11(a) of the Securities Act.
(f) The Company will furnish such proper information as may be lawfully
required and otherwise cooperate in qualifying the Shares for offer and sale
under the securities or blue sky laws of such states as the Representative may
designate; provided, however, that the Company shall not be required in any
state to qualify as a foreign corporation, or to file a general consent to
service of process, or to submit to any requirements which it deems unduly
burdensome.
(g) Fees and disbursements Underwriter's counsel who are acting as counsel
for the Underwriters (exclusive of fees and disbursements of such counsel which
are to be paid as set forth in Section 6(b)), shall be paid by the Underwriters;
provided, however, that if this Agreement is terminated in accordance with the
provisions of Sections 7 or 8 hereof, the Company shall reimburse the
Representative for the account of the Underwriters for the amount of such fees
and disbursements.
7. Conditions of Underwriters' Obligations; Termination by the Underwriters.
------------------------------------------------------------------------
(a) The obligations of the Underwriters to purchase and pay for the
Shares shall be subject to the following conditions:
(i) No stop order suspending the effectiveness of the
Registration Statement shall be in effect on the Closing Date and no
proceedings for that purpose shall be pending before, or to the
knowledge of the Company threatened by, the Commission on such date.
The Representative shall have received, prior to payment for the
Shares, a certificate dated the Closing Date and signed by the
Chairman of the Board, Chief Executive Officer, President or any
Executive or Senior Vice President of the Company to the effect that
no such stop order is in effect and that no proceedings for such
purpose are pending before or, to the knowledge of the Company,
threatened by the Commission.
(ii) At the Closing Date an order or orders of the Commission
pursuant to the Holding Company Act permitting the issuance and sale
of the Shares shall be in full force and effect and all provisions of
such order or
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<PAGE>
orders heretofore entered are deemed acceptable to the
Representative and the Company, and all provisions of such order or
orders hereafter entered shall be deemed acceptable to the
Representative and the Company unless within 24 hours after receiving
a copy of any such order either shall give notice to the other to the
effect that such order contains an unacceptable provision.
(iii) At the Closing Date the Representative shall receive, on
behalf of the several Underwriters, the opinions of McGuire, Woods,
Battle & Boothe, LLP, counsel to the Company and [Underwriters'
Counsel], counsel to the Underwriters, substantially in the forms
attached hereto as Schedules II and III.
(iv) At the time of execution of this Agreement and as of the
Closing Date, the Representative shall have received, on behalf of the
Underwriters, letters dated as of the date hereof and/or as of the
Closing Date, in form and substance satisfactory to the
Representatives, from the Company's independent public accountants,
containing statements and information of the type ordinarily included
in accountants' SAS 72 "comfort letters" to underwriters with respect
to the financial statements and certain financial information
contained in or incorporated by reference into the Prospectus.
(v) Subsequent to the execution of this Agreement and prior to
the Closing Date, (A) except as reflected in, or contemplated by, the
Registration Statement and the Prospectus, there shall not have
occurred (1) any change in the Shares of the Company (other than a
decrease in the aggregate number thereof outstanding), (2) any
material adverse change in the general affairs, financial condition or
earnings of the Company or (3) any material transaction entered into
by the Company other than a transaction in the ordinary course of
business, the effect of which in each such case in the judgment of the
Representative is so material and so adverse that it makes it
inadvisable to proceed with the public offering or delivery of the
Shares on the terms and in the manner contemplated in the Prospectus
and this Agreement, or (B) there shall not have occurred (1) a
downgrading in the rating accorded any of the Company's senior
securities by any "nationally recognized statistical rating
organization" (as that term is defined by the Commission for purposes
of Rule 436(g)(2) under the Securities Act), (2) any general
suspension of trading in securities on the New York Stock Exchange or
any limitation on prices for such trading or any restrictions on the
distribution of securities established by the New York Stock Exchange
or by the Commission or by any federal or state agency or by the
decision of any court, (3) a banking moratorium declared either by
federal or New York State authorities or (4) any outbreak or
escalation of major hostilities in
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<PAGE>
which the Unites States is involved, any declaration of war by the
United States Congress or any other substantial national or
international calamity or crisis resulting in the declaration of a
national emergency, the effect of which outbreak, escalation,
declaration, calamity or crisis, in the reasonable judgment of the
Representative, makes it impracticable or inadvisable to proceed with
the public offering or delivery of the Shares on the terms and in the
manner contemplated in the Prospectus and in this Agreement.
(vi) On the Closing Date, the representations and warranties of
the Company in this Agreement shall be true and correct as if made on
and as of such date, and the Company shall have performed all
obligations and satisfied all conditions required of it under this
Agreement; and, at the Closing Date, the Representative shall have
received a certificate to such effect signed by the Chairman of the
Board, Chief Executive Officer, President or any Executive or Senior
Vice President of the Company.
(vii) All legal proceedings to be taken in connection with the
issuance and sale of the Shares shall have been satisfactory in form
and substance to [Underwriters' Counsel].
(b) In case any of the conditions specified above in Section 7(a)
shall not have been fulfilled, this Agreement may be terminated by the
Representative upon mailing or delivering written notice thereof to the
Company; provided, however, that in case the conditions specified in
Section 7(a)(v) and (vi) shall not have been fulfilled, this Agreement may
not be so terminated by the Representative unless Underwriters who have
agreed to purchase in the aggregate greater than 50% of the aggregate
principal amount of the Shares shall have consented to such termination and
the aforesaid notice shall so state. Any such termination shall be without
liability of any party to any other party except as otherwise provided in
Section 9 and Sections 6(b), 6(g) and 7(c) hereof.
(c) If this Agreement shall be terminated by the Representative
pursuant to Section 7(b) above or because of any failure or refusal on the
part of the Company to comply with the terms or to fulfill any of the
conditions of this Agreement, or if for any reason the Company shall be
unable to perform its obligations under this Agreement, then in any such
case, the Company will reimburse the Underwriters, severally, for all
out-of-pocket expenses (in addition to the fees and disbursements of their
outside counsel as provided in Section 6(g)) reasonably incurred by such
Underwriters in connection with this Agreement or the offering contemplated
hereunder and, upon such reimbursement, the Company shall be absolved from
any further liability hereunder, except as provided in Section 6(b) and
Section 9.
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<PAGE>
(d) The several obligations of the Underwriters to purchase
Additional Shares hereunder are subject to the delivery to the
Representative on the Option Closing Date of such documents and opinions as
the Representative may reasonably request with respect to the good standing
of the Company, the due authorization and issuance of the Additional Shares
and other matters related to the issuance of the Additional Shares.
8. Conditions of the Obligation of the Company. The obligation of the
-------------------------------------------
Company to deliver the Shares shall be subject to the conditions set forth in
the first sentence of Section 7(a)(i) and in Section 7(a)(ii). In case said
conditions shall not have been fulfilled, this Agreement may be terminated by
the Company by mailing or delivering written notice thereof to the
Representative. Any such termination shall be without liability of any party to
any other party except as otherwise provided in Sections 6(b), 6(g), 9 and 10(c)
hereof.
9. Indemnification. (a) The Company agrees to indemnify and hold harmless
---------------
each Underwriter and each person who controls any Underwriter within the meaning
of Section 15 of the Securities Act or Section 20(a) of the Securities Exchange
Act, against any and all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject under the Securities
Act, the Securities Exchange Act, or any other statute or common law and to
reimburse each such Underwriter and controlling person for any legal or other
expenses (including, to the extent hereinafter provided, reasonable outside
counsel fees) incurred by them in connection with investigating any such losses,
claims, damages, or liabilities, or in connection with defending any actions,
insofar as such losses, claims, damages, liabilities, expenses or actions arise
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus, or in
either such document as amended or supplemented (if any amendments or
supplements thereto shall have been furnished), or any Preliminary Prospectus
(if and when used prior to the effective date of the Registration Statement), or
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;
provided that the foregoing agreement, insofar as it relates to any Preliminary
Prospectus, shall not inure to the benefit of any Underwriter (or to the benefit
of any person who controls such Underwriter) on account of any losses, claims,
damages or liabilities arising out of the sale of any of the Shares by such
Underwriter to any person if it shall be established that a copy of the
Prospectus, excluding any documents incorporated by reference (as supplemented
or amended, if the Company shall have made any supplements or amendments which
have been furnished to the Representative), shall not have been sent or given by
or on behalf of such Underwriter to such person at or prior to the written
confirmation of the sale to such person in any case where such delivery is
required by the Securities Act, if the misstatement or omission leading to such
loss, claim, damage or liability was corrected in the Prospectus (excluding any
documents incorporated by reference) as amended or supplemented, and such
correction would have cured the defect giving rise to such loss, claim, damage,
or liability; and provided further, however, that the indemnity agreement
contained in this Section 9(a) shall not apply to any such losses, claims,
damages, liabilities, expenses or actions arising out of or based upon any such
untrue
- 10 -
<PAGE>
statement or alleged untrue statement, or any such omission or alleged omission,
if such statement or omission was made in reliance upon information furnished
herein or otherwise in writing to the Company by or on behalf of any Underwriter
for use in the Registration Statement or any amendment thereto, in the
Prospectus or any supplement thereto, or in any Preliminary Prospectus. The
indemnity agreement of the Company contained in this Section 9(a) and the
representations and warranties of the Company contained in Section 3 hereof
shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or any such controlling
person, and shall survive the delivery of the Shares.
(b) Each Underwriter agrees, severally and not jointly, to indemnify and hold
harmless the Company, its officers and directors, each other Underwriter, and
each person who controls any thereof within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Securities Exchange Act, against any and
all losses, claims, damages or liabilities, joint or several, to which they or
any of them may become subject under the Securities Act, the Securities Exchange
Act, or any other statute or common law and to reimburse each of them for any
legal or other expenses (including, to the extent hereinafter provided,
reasonable outside counsel fees) incurred by them in connection with
investigating any such losses, claims, damages or liabilities or in connection
with defending any actions, insofar as such losses, claims, damages,
liabilities, expenses or actions arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus, or in either such document as amended
or supplemented (if any amendments or supplements thereto shall have been
furnished), or any Preliminary Prospectus (if and when used prior to the
effective date of the Registration Statement), or 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, if such statement or
omission was made in reliance upon information furnished herein or in writing to
the Company by or on behalf of such Underwriter for use in the Registration
Statement or the Prospectus or any amendment or supplement to either thereof, or
any Preliminary Prospectus. The indemnity agreement of the respective
Underwriters contained in this Section 9(b) shall remain operative and in full
force and effect, regardless of any investigation made by or on behalf of the
Company, or any such other Underwriter or any such controlling person, and shall
survive the delivery of the Shares.
(c) The Company and each of the Underwriters agrees that, upon the receipt of
notice of the commencement of any action against the Company or any of its
officers or directors, or any person controlling the Company, or against such
Underwriter or controlling person as aforesaid, in respect of which indemnity
may be sought on account of any indemnity agreement contained herein, it will
promptly give written notice of the commencement thereof to the party or parties
against whom indemnity shall be sought hereunder, but the omission so to notify
such indemnifying party or parties of any such action shall not relieve such
indemnifying party or parties from any liability which it or they may have to
the indemnified party otherwise than on account of such indemnity agreement. In
case such notice of any such action shall be so given, such indemnifying party
shall be entitled to participate at its own expense in the defense or, if it so
elects, to assume (in conjunction with any other indemnifying parties) the
defense of such action, in which event such
- 11 -
<PAGE>
defense shall be conducted by counsel chosen by such indemnifying party (or
parties) and satisfactory to the indemnified party or parties who shall be
defendant or defendants in such action, and such defendant or defendants shall
bear the fees and expenses of any additional outside counsel retained by them;
provided that, if the defendants in any such action include both the indemnified
party and the indemnifying party (or parties) and the indemnified party shall
have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to those
available to the indemnifying party (or parties), the indemnified party shall
have the right to select separate counsel to assert such legal defenses and to
participate otherwise in the defense of such action on behalf of such
indemnified party. The indemnifying party shall bear the reasonable fees and
expenses of outside counsel retained by the indemnified party if (i) the
indemnified party shall have retained such counsel in connection with the
assertion of legal defenses in accordance with the proviso to the preceding
sentence (it being understood, however, that the indemnifying party shall not be
liable for the expenses of more than one separate counsel, representing the
indemnified parties under Section 9(a) or 9(b), as the case may be, who are
parties to such action), (ii) the indemnifying party shall have elected not to
assume the defense of such action, (iii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the commencement of
the action, or (iv) the indemnifying party has authorized the employment of
counsel for the indemnified party at the expense of the indemnifying party.
Notwithstanding the foregoing sentence, an indemnifying party shall not be
liable for any settlement of any proceeding effected without its written consent
(such consent not to be unreasonably withheld), but if settled with such consent
or if there be a final judgment for the plaintiff, the indemnifying party agrees
to indemnify the indemnified party from and against any loss or liability by
reason of such settlement or judgment. 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 indemnification may be
sought hereunder (whether or not the indemnified party is an actual or potential
party to such a proceeding), 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) If the indemnification provided for in this Section 9 is unavailable to
or insufficient to hold harmless an indemnified party in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is appropriate
to reflect the relative fault of the Company, on the one hand, and of the
Underwriters, on the other, in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations, including
relative benefit. The relative fault 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 required to be
stated therein or necessary in order to make the statements therein not
misleading relates to information supplied by the
- 12 -
<PAGE>
Company on the one hand or by you on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and you agree that it would not be just and
equitable if contribution pursuant to this Section 9 (d) were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to above in this Section 9 (d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to above
in this Section 9 (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. 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 who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations under this Section 9
(d) to contribute are several in proportion to their respective underwriting
obligations and not joint.
10. Termination by the Company. If any one or more of the Underwriters shall
--------------------------
fail or refuse to purchase the Shares which it or they have agreed to purchase
hereunder, and the aggregate principal amount of the Shares which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
is not more than one-tenth of the aggregate principal amount of the Shares, then
the other Underwriters shall be obligated severally in the proportions which the
principal amount of the Shares set forth opposite their respective names in
Schedule I bears to the aggregate underwriting obligations of all non-defaulting
Underwriters, or in such other proportions as the Underwriters may specify, to
purchase the Shares which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase. If any Underwriter or Underwriters shall so fail
or refuse to purchase Shares and the aggregate principal amount of the Shares
with respect to which such default occurs is more than one-tenth of the
aggregate principal amount of the Shares and arrangements satisfactory to the
Underwriters and the Company for the purchase of such Shares are not made within
36 hours after such default, this Agreement will terminate without liability on
the part of any non-defaulting Underwriter (except as provided in Section 6(g)
and Section 9) or of the Company (except as provided in Section 6(b) and Section
9). In any such case not involving a termination, either the Representative or
the Company shall have the right to postpone the Closing Date, but in no event
for longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this Section 10 shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
11. Representations, Warranties and Agreements to Survive Delivery. All
--------------------------------------------------------------
representations, warranties and agreements contained in this Agreement or
contained in certificates of officers of the Company submitted pursuant hereto
shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of any Underwriter or any controlling person
of any Underwriter, or by or on behalf of the Company, and shall survive
delivery of the Shares.
12. Miscellaneous. The validity and interpretation of this Agreement shall
-------------
be governed by
- 13 -
<PAGE>
the laws of the State of New York. This Agreement shall inure to the benefit of
the Company, the Underwriters and, with respect to the provisions of Section 9
hereof, each controlling person and each officer and director of the Company
referred to in Section 9, and their respective successors, assigns, executors
and administrators. Nothing in this Agreement is intended or shall be construed
to give to any other person, firm or corporation any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision herein
contained. The term "successors" as used in this Agreement shall not include any
purchaser, as such, of any of the Shares from any of the several Underwriters.
13. Notices. All communications hereunder shall be in writing and if to the
-------
Underwriters shall be mailed, telexed, telecopied or delivered to the
Representative at the address set forth on Schedule I hereto, or if to the
Company shall be mailed, telexed, telecopied or delivered to it, attention of
Treasurer, Dominion Resources, Inc., 120 Tredegar Street, Richmond, Virginia
23219.
- 14 -
<PAGE>
Please sign and return to us a counterpart of this letter, whereupon this
letter will become a binding agreement between the Company and the several
Underwriters in accordance with its terms.
DOMINION RESOURCES, INC.
By:_________________________________
Title:
The foregoing agreement is
hereby confirmed and accepted,
as of the date first above
written.
[Name of Representation]
By:________________________________
Title:
Acting individually and on
behalf of the other several
Underwriters named in
Schedule I hereto.
- 15 -
<PAGE>
SCHEDULE I
- --------------------------------------------------------------------------------
Underwriter Number of Firm Shares To Be Purchased
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Total
- 16 -
<PAGE>
SCHEDULE II
PROPOSED FORM OF OPINION
OF
MCGUIRE, WOODS, BATTLE & BOOTHE LLP
One James Center
901 East Cary Street
Richmond, Virginia 23219
______, 200_
[Name of Underwriter]
as Representative for
the Several Underwriters
named in Schedule I hereto
[Address of Representative]
Re: Dominion Resources Inc. Common Stock Offering
Ladies and Gentlemen:
We have acted as counsel to Dominion Resources, Inc., a Virginia
corporation (the "Company"), in connection with the issuance and sale by the
Company of ____ shares (the "Shares") of its common stock (no par value)
pursuant to an underwriting agreement dated ____________, 200__ (the
"Underwriting Agreement") among the Company and ____________(the
"Underwriters"), and the several other underwriters named therein. This opinion
is rendered pursuant to the provisions of Section 7(a)(iii) of the Underwriting
Agreement, and, except a set forth herein, the terms used herein which are
defined in the Underwriting Agreement have the same meanings as they have in the
Underwriting Agreement.
We have examined the Underwriting Agreement, a specimen certificate for the
Common Stock, the Articles of Incorporation and the By-laws of the Company and
such other corporate records of the Company, agreements and other instruments,
certificates of public officials, certificates of officers and representatives
of the Company, and other documents and have conducted such other investigations
of facts and law as we have deemed necessary or advisable for purposes of this
opinion. 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. Whenever the phrases "to our knowledge" or "known to us" are
used herein, they refer to the actual knowledge of the attorneys of this firm
generally involved in the representation of the Company.
<PAGE>
To each of the persons on
Schedule I attached hereto
____, 200_
Page 2
For purposes of the opinions expressed below, we have assumed (i) the
authenticity of all documents submitted to us as originals, (ii) the conformity
to the originals of all documents submitted as certified or photostatic copies
and the authenticity of the originals of such copies, (iii) the genuineness of
signatures not witnessed by us, (iv) the legal capacity of natural persons, and
(v) the due authorization, execution and delivery of all documents by all
parties and the validity and binding effect thereof (other than the
authorization, execution and delivery of documents by the Company, and the
validity and binding effect upon the Company).
Based upon and subject to the foregoing as well as the qualifications
hereinafter set forth, we are of the opinion that:
(A) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the Commonwealth of
Virginia, has the corporate power and authority to own, lease and operate
its property and to conduct its business as described in the Prospectus and
to enter into and perform its obligations under this Agreement; and is duly
qualified as a foreign corporation in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires
such qualification, except to the extent that the failure to be so
qualified would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(B) Each of [Insert Names of Significant Subsidiaries] has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the respective juristiction of their organization.
(C) The execution and delivery by the Company of the Underwriting
Agreement and the performance by the Company of its obligations thereunder
have been duly authorized by all necessary corporate action on the part of
the Company; and the Underwriting Agreement has been duly executed and
delivered by the Company.
(D) The Common Stock of the Company conforms in all material respects
to the description thereof in the Prospectus.
(E) The Shares have been duly authorized and are validly issued,
fully paid and non-assessable. The Shares are not subject to any preemptive
or similar rights. The Shares have been duly authorized for listing on the
New York Stock Exchange (the "NYSE").
(F) The execution and delivery by the Company of, and the performance
by the Company of its obligations under, the Underwriting Agreement and the
issuance and sale by the Company of the Shares do not and will not
contravene the Articles of Incorporation or the By-laws of the Company
<PAGE>
To each of the persons on
Schedule I attached hereto
____, 200_
Page 3
or any provision of any law of the Commonwealth of Virginia, the State of
New York or U.S. federal law or, to our knowledge, any judgment, order or
decree of any U.S. federal court or government agency or any court or
government agency of the State of New York or the Commonwealth of Virginia
having jurisdiction over the Company. No approval, authorization or consent
of any U.S. federal, New York, or Virginia court or governmental authority
or agency is required in connection with the consummation by the Company of
the transactions contemplated by the Underwriting Agreement, except such as
have been obtained or will have been obtained prior to the Closing Date or
as may be required under state securities laws.
(G) To the best of our knowledge, there are no actions, suits or
proceedings pending or threatened to which the Company is a party or to
which any of its properties is subject other than any proceedings described
in the Prospectus and proceedings which we believe are not likely to have a
material adverse effect on the power or ability of the Company to perform
its obligations under the Underwriting Agreement or to consummate the
transactions contemplated thereby or by the Prospectus.
(H) We have reviewed the Registration Statement and Prospectus and
participated in conferences with officers and other representatives of the
Company, representatives of the independent public accountants for the
Company and with your representatives and representatives of your counsel
at which conferences the contents of the Registration Statement and
Prospectus and related matters were discussed and have also reviewed
certain corporate records, documents and proceedings, and, although we are
not passing upon and do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Prospectus
(except to the extent set forth in paragraphs (I) below and (D) above), on
the basis of the foregoing, no facts have come to our attention which have
led us to believe that, as of its effective date, the Registration
Statement contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading or that, as of its date or the
Closing Date, the Prospectus contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading (except that we express no comment or belief
with respect to the financial statements and schedules and other financial
or statistical information contained in the Registration Statement or
Prospectus).
(I) [The statements in (A) the Prospectus under the captions
"Virginia Stock Corporation Act and the Articles and By-laws" and
"Description of Capital Stock -- Common Stock," and (B) in the Registration
Statement in Item 15, insofar as such statements constitute a summary of
the legal matters, documents
<PAGE>
To each of the persons on
Schedule I attached hereto
____, 200_
Page 4
or proceedings referred to therein, fairly summarize the matters referred
to therein in all material respects (except that we express no comment or
belief with respect to the financial statements and schedules and other
financial or statistical information contained in the Registration
Statement or Prospectus).]
(J) Each of the Registration Statement and the Prospectus, when it
became effective or was filed with the Commission, as the case may be,
appeared on its face to be appropriately responsive in all material
respects to the requirements of the Act and the rules and regulations of
the Commission thereunder (except that we express no comment or belief with
respect to the financial statements and schedules and other financial or
statistical information contained in the Registration Statement or
Prospectus).
(K) The form of the certificate for the Shares conforms in all
material respects to the requirements of the Virginia Stock Corporation Act
and the NYSE.
(L) The Company is not, and following consummation of the
transactions contemplated by the Underwriting Agreement will not be, an
"investment company" or a company "controlled" by an "investment company"
which is required to be registered under the Investment Company Act of
1940, as amended.
(M) [The Company is a registered "holding company" within the meaning
of that term as defined in the Public Utility Holding Company Act of 1935,
as amended.]
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. [Underwriter's counsel] may rely on this opinion in connection with the
opinions they are delivering on the date hereof with respect to the matters set
forth herein to the extent that such opinion involves matters governed by the
laws of the Commonwealth of Virginia. Our opinion in paragraph (F) as to non-
contravention of the laws of the State of New York is based upon a review of
those laws and statutes which, in our experience, are normally applicable to
transactions of the type contemplated by the Underwriting Agreement. We do not
express any opinion herein or whether the provisions of the Underwriting
Agreement regarding rights to indemnity and contribution contravene or are
limited by federal or state securities laws and public policy.
This opinion letter may not be relied upon by, nor may copies be delivered
to, any person without our prior written consent.
Very truly yours,
<PAGE>
SCHEDULE III
PROPOSED FORM OF OPINION
OF
UNDERWRITER'S COUNSEL
[DATE]
[Name of Underwriter]
as Representative for the
Several Underwriters named
in Schedule I hereto
[Address of Representative]
Re: Dominion Resources Inc.--Offering of _______ Shares
of Common Stock (no par value)
Ladies and Gentlemen:
We have acted as counsel for you (the "Underwriters") in connection with
the purchase today by you severally of _______ shares (the "Shares") of the
common stock (no par value) of Dominion Resources, Inc., a Virginia corporation
(the "Company"), pursuant to the terms of an underwriting agreement dated
____________, 200__ (the "Underwriting Agreement") among the Company and you.
This letter is being delivered to you pursuant to the provisions of Section
7(a)(iii) of the Underwriting Agreement. Terms used in this letter which are not
defined herein but which are defined, either directly or by cross-reference, in
the Underwriting Agreement are used herein with the respective meanings assigned
to such terms in the Underwriting Agreement.
In connection therewith, we have examined (a) the Registration Statement on
Form S-3 (Registration No. _______________ thereto, filed by the Company with
the Securities and Exchange Commission (the "Commission") under the Securities
Act of 1933, as amended (the "Act"), relating to the registration of the Shares,
as it became effective under the Act (such Registration Statement, as so amended
and including documents incorporated therein by reference, being hereinafter
referred to as the "Registration Statement"), (b) the Company's Prospectus
Supplement, dated ___________, 2000, as filed in final form with the Commission
on ______________, 200_ pursuant to Rule 424(b) under the Act (such Prospectus
Supplement, together with the Prospectus included as part of the Registration
Statement and documents incorporated therein by reference, the "Prospectus", (c)
executed counterparts of the Underwriting
<PAGE>
[Underwriter Representative
[Date]
Page 2
Agreement, (d) a copy of the Articles of Incorporation of the Company, (e) a
copy of the By-Laws of the Company, (f) a specimen certificate for the Common
Stock and (g) a record of corporate proceedings of the Company relating to the
authorization of the public offering, including the execution and delivery of
the Underwriting Agreement. In addition, we have examined certificates of public
officials and the originals (or copies certified or otherwise identified to our
satisfaction) of such other agreements, certificates, documents and records and
have reviewed such questions of law as we have deemed necessary or appropriate
for the purposes of the opinions rendered herein.
In such examination, we have assumed, without inquiry, the genuineness of
all signatures on all documents examined by us, the authenticity of all
documents submitted to us as originals, the conformity to authentic original
documents of all documents submitted to us as copies and the authenticity of the
originals of such latter documents. In addition, we have assumed, without
inquiry, that the Underwriting Agreement has been duly authorized, executed and
delivered by all parties other than the Company, and that the certificates
representing the Shares being issued on the date hereof conform in all respects
to the specimens examined by us. As to any facts material to our opinion, we
have, when relevant facts were not independently established, relied on the
aforesaid agreements, instruments, certificates, documents and records.
Based on the foregoing, and subject to the qualifications, assumptions and
limitations stated herein, we are of the opinion that:
(A) The Company is validly existing as a corporation in good
standing under the laws of the Commonwealth of Virginia;
(B) The Underwriting Agreement has been duly authorized, executed
and delivered by the Company;
(C) The Shares have been duly authorized and are validly issued,
fully paid and non-assessable; and
(D) The statements in the Prospectus under the captions
"Description of Capital Stock -- Common Stock" and "Underwriters," insofar
as such statements constitute a summary of the legal matters, documents or
proceedings referred to therein, fairly summarize the matters referred to
therein in all material respects.
As your counsel, we have reviewed the Registration Statement and
Prospectus, participating in discussions with representatives of the
Underwriters and of the Company and its accountants at which contents of the
Registration Statement and Prospectus and related matters were discussed. We did
not participate in the preparation of the Registration Statement (other than the
Prospectus Supplement) or any of the documents (other than the Underwriting
Agreement) incorporated by reference therein. Although we are not passing upon,
and do not assume any responsibility for, the accuracy,
<PAGE>
[Underwriter Representative
[Date]
Page 3
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus (except as described in paragraph (iv) hereof),
based on the foregoing, no facts have come to our attention in the course of
such review which have led us to believe that, as of its effective date, the
Registration Statement (other than the financial statements and the financial,
accounting and statistical data and related schedules incorporated by reference
or included therein or excluded therefrom, as to which we express no opinion)
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading or that, as of its date or the date hereof, the Prospectus (other
than the financial statements and financial, accounting and statistical data and
related schedules incorporated by reference or included therein or excluded
therefrom, as to which we express no opinion) contained or contains an untrue
statement of a material fact or omitted or omits to state a material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
The opinions rendered herein are limited to the laws of the State of New
York and the Federal law of the United States. In rendering the foregoing
opinions, we have, with your consent, relied solely upon the opinion of McGuire,
Woods, Battle & Boothe LLP, dated the date hereof and addressed to you, as to
all matters under the laws of the Commonwealth of Virginia, and our opinions
rendered herein as to such matters are subject to the same qualifications,
assumptions and limitations as are set forth in such opinion.
This letter and the opinions rendered herein are furnished by us as counsel
to you in connection with the transactions contemplated by the Underwriting
Agreement and solely for your benefit and may not be delivered to or relied upon
in any manner by any other person or entity without our express written consent.
Very truly yours,
<PAGE>
Exhibit 1(iv)
_____________ Trust Preferred Securities
DOMINION RESOURCES CAPITAL TRUST [ ]
guaranteed by
DOMINION RESOURCES, INC.
FORM OF UNDERWRITING AGREEMENT
[Date]
[Name of Representative],
for itself
and the other several Underwriters
named in Schedule I, attached hereto
[Address of Representative]
Ladies and Gentlemen:
Dominion Resources Capital Trust [ ] (the Trust), a statutory business
trust created under the Business Trust Act (the Delaware Act) of the State of
Delaware (Chapter 38, Title 12, of the Delaware Code, 12 Del. C. Sections 3801
et seq.) and Dominion Resources, Inc., a Virginia corporation (the Company and,
together with the Trust, the Offerors), confirm their agreement (the Agreement)
with [Name of Representative] (the Representative), and each of the other
Underwriters named in Schedule I (collectively, including the Representative,
the Underwriters), with respect to the issue and sale by the Trust and the
purchase by the Underwriters, acting severally and not jointly, of the
respective number set forth opposite their names in Schedule I of the __________
____% Trust Preferred Securities (liquidation amount of $______ per security) of
the Trust (the Trust Preferred Securities). The Trust Preferred Securities will
be guaranteed by the Company, to the extent described in the Prospectus (as
defined below), with respect to distributions and payments upon liquidation,
redemption and otherwise pursuant to the Trust Preferred Securities Guarantee
Agreement (the Trust Preferred Securities Guarantee), to be dated as of
__________ ___, 200__, between the Company and The Chase Manhattan Bank, as
Trustee (the Guarantee Trustee). The Trust Preferred Securities issued in book-
entry form will be issued to Cede & Co., as nominee of The Depository Trust
Company (DTC), pursuant to a letter of representations, to be dated on or prior
to the Closing Time (as defined in Section 3(b)) (the DTC Agreement), among the
Trust, the Guarantee Trustee and DTC.
The entire proceeds from the sale of the Trust Preferred Securities will be
combined with the entire proceeds from the sale by the Trust to the Company of
its common securities (the Common Securities), and will be used by the Trust to
purchase $_____________ of ____% Junior Subordinated Deferrable Interest
Debentures due ____________ ___, 20___ (the Subordinated Debentures) issued by
the Company. The Trust Preferred Securities and the Common Securities will be
issued pursuant to the Amended and Restated Trust Agreement, to be dated as of
____________ ___, 200__
<PAGE>
(the Trust Agreement), among the Company, as sponsor, ______________________ and
___________________, as administrative trustees (the Administrative Trustees),
The Chase Manhattan Bank, as property trustee (the Property Trustee), and Chase
Manhattan Bank Delaware, as Delaware trustee (the Delaware Trustee and, together
with the Property Trustee and the Administrative Trustees, the Trustees). The
Subordinated Debentures will be issued pursuant to an indenture, as of December
1, 1997, as supplemented by a supplemental indenture dated as of December 1,
1997 and as to be further supplemented by a supplemental indenture to be dated
as of _____________ ___, 200__ (collectively, the Indenture), between the
Company and The Chase Manhattan Bank, as trustee (the Debenture Trustee). The
Trust and the Company shall enter into an Agreement as to Expenses and
Liabilities (the Expenses Agreement) to be dated as of _____________ ___, 200__,
pursuant to which the Company shall pay, under certain circumstances, the
Obligations (as defined in the Expenses Agreement) of the Trust.
The Trust Preferred Securities, the Trust Preferred Securities Guarantee
and the Subordinated Debentures may be collectively referred to herein as the
"Securities." The Indenture, the Trust Agreement and the Trust Preferred
Securities Guarantee, the Expenses Agreement, the DTC Agreement and this
Agreement may be referred to herein collectively as the "Operative Documents."
The Offerors understand that the Underwriters propose to make a public
offering of the Trust Preferred Securities (as guaranteed by the Trust Preferred
Securities Guarantee) on the terms and in the manner set forth herein and agree
that the Underwriters may resell, subject to the conditions set forth herein,
all or a portion of the Trust Preferred Securities.
SECTION 1. Representations and Warranties. The Offerors jointly and
------------------------------
severally represent and warrant to each Underwriter as of the date hereof and as
of the Closing Time, and agree with each Underwriter as follows:
(a) A registration statement, No. 333-______ on Form S-3 for the registration
of the Securities and certain other securities of the Company under the
Securities Act of 1933, as amended (the Securities Act), heretofore filed with
the Securities and Exchange Commission (the Commission), a copy of which as so
filed has been delivered to the Underwriters, has become effective. The
registration statement, including all exhibits thereto, as amended through the
date hereof, is hereinafter referred to as the "Registration Statement"; the
prospectus relating to the Securities and other securities included in the
Registration Statement, which prospectus is now proposed to be supplemented by a
supplement relating to the Securities to be filed with the Commission under the
Securities Act, as so supplemented, is hereinafter referred to as the
"Prospectus". As used herein, the terms "Registration Statement", "prospectus"
and "Prospectus" include all documents (including any Current Report on Form 8-
K) incorporated therein by reference, and shall include any documents (including
any Current Report on Form 8-K) filed after the date of such Registration
Statement, prospectus or Prospectus and incorporated therein by reference from
the date of filing of such incorporated documents (collectively, the
Incorporated Documents).
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<PAGE>
(b) No order suspending the effectiveness of the Registration Statement or
otherwise preventing or suspending the use of the Prospectus has been issued by
the Commission and is in effect and no proceedings for that purpose are pending
before or, to the knowledge of the Company, threatened by the Commission. The
Registration Statement and the Prospectus comply in all material respects with
the provisions of the Securities Act, the Securities Exchange Act of 1934, as
amended (the Securities Exchange Act), and the rules, regulations and releases
of the Commission thereunder (the Rules and Regulations) and, on the date
hereof, neither the Registration Statement nor the Prospectus 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, and,
at the Closing Time, the Registration Statement and the Prospectus (including
any amendments and supplements thereto) will conform in all respects to the
requirements of the Securities Act and the Rules and Regulations, and neither of
such documents will include any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, that the foregoing representations
and warranties in this Section 1(b) shall not apply to statements in or
omissions from the Registration Statement or the Prospectus made in reliance
upon information furnished herein or in writing to the Company by the
Underwriter or on the Underwriter's behalf for use in the Registration Statement
or Prospectus; and provided, further, that the foregoing representations and
warranties are given on the basis that any statement contained in an
Incorporated Document shall be deemed not to be contained in the Registration
Statement or Prospectus if the statement has been modified or superseded by any
statement in a subsequently filed Incorporated Document or in the Registration
Statement or Prospectus or in any amendment or supplement thereto.
(c) Except as reflected in, or contemplated by, the Registration Statement and
Prospectus, since the respective most recent dates as of which information is
given in the Registration Statement and Prospectus, there has not been any
material adverse change in the condition of the Company, financial or otherwise.
(d) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own, lease and operate
its property and to conduct its business as described in the Prospectus and to
enter into and perform its obligations under each of the Operative Documents, to
hold the Common Securities issued by the Trust, to issue, deliver and perform
its obligations under the Subordinated Debentures, the Trust Preferred
Securities Guarantee and the Expenses Agreement; and is duly qualified to
transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the Company and its
Significant Subsidiaries (as defined in Rule 1-01(w) of Regulation S-X), taken
as a whole.
(e) All of the issued and outstanding capital stock of each Significant
Subsidiary has been duly authorized and validly issued, is fully paid and
non-assessable and, the
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common capital stock is owned by the Company, directly or through Significant
Subsidiaries, free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equitable right.
(f) The Trust has been duly created and is validly existing in good standing as
a statutory business trust under the Delaware Act with the power and authority
to own its property and to conduct its business as described in the Prospectus
and to enter into and perform its obligations under the Operative Documents, as
applicable, and to issue, deliver and perform its obligations under the Trust
Preferred Securities. The Trust is not a party to or otherwise bound by any
material agreement other than those described in the Prospectus. The Trust is
and will, under current law, be classified for United States federal income tax
purposes as a grantor trust and not as an association taxable as a corporation.
The Trust does not have any consolidated or unconsolidated Significant
Subsidiaries. The Trust is and will be treated as a consolidated subsidiary of
the Company pursuant to generally accepted accounting principles. The Trust is
not required to be authorized to do business in any jurisdiction other than the
State of Delaware.
(g) The Common Securities have been duly authorized by the Trust Agreement and,
when issued and delivered by the Trust to the Company against payment therefor
as described in the Prospectus, will be validly issued and, subject to the terms
of the Trust Agreement, fully paid and non-assessable undivided beneficial
interests in the assets of the Trust and will conform in all material respects
to the description thereof contained in the Prospectus. The issuance of the
Common Securities is not subject to preemptive or other similar rights. At the
Closing Time all of the issued and outstanding Common Securities of the Trust
will be directly owned by the Company free and clear of any security interest,
mortgage, pledge, lien, claim, encumbrance or equitable right.
(h) The Trust Preferred Securities have been duly authorized by the Trust
Agreement and, when issued and delivered against payment therefor as provided
herein, will be validly issued and, subject to the terms of the Trust Agreement,
fully paid and non-assessable undivided beneficial interests in the assets of
the Trust and will conform in all material respects to the description thereof
contained in the Prospectus. The issuance of the Trust Preferred Securities will
not be subject to preemptive or other similar rights.
(i) The execution and delivery by the Trust and the Company of this Agreement
and the performance by the Trust and the Company of their respective obligations
hereunder, have been duly authorized by all necessary action on the part of the
Trust and corporate action on the part of the Company; and this Agreement has
been duly executed and delivered by the Trust and the Company.
(j) The Trust Agreement has been duly authorized by the Company and, at the
Closing Time, will have been duly executed and delivered by the Company and the
Trustees, and assuming due authorization, execution and delivery of the Trust
Agreement by the Property Trustee and the Delaware Trustee, the Trust Agreement
will, at the Closing Time, be a valid and binding obligation of the Company and
the Trustees, enforceable against the Company and the Trustees in accordance
with its terms, subject to
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bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditor's rights generally or by general principles of equity
(whether in a proceeding at law or in equity) and the availability of equitable
remedies (collectively, the Bankruptcy Exceptions); will conform in all material
respects to the description thereof contained in the Prospectus; and will have
been duly qualified under the Trust Indenture Act of 1939, as amended (the 1939
Act).
(k) The Trust Preferred Securities Guarantee, the Indenture and the Expenses
Agreement have been duly authorized by the Company and, at the Closing Time,
will have been duly executed and delivered by the Company, and will constitute
valid and binding obligations of the Company, enforceable against the Company in
accordance with their terms, subject to the Bankruptcy Exceptions; will conform
in all material respects to the descriptions thereof contained in the
Prospectus; will constitute a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, subject to the
Bankruptcy Exceptions; will conform in all material respects to the description
thereof contained in the Prospectus; and at the time the Closing Time, the Trust
Preferred Securities Guarantee and the Indenture will have been duly qualified
under the 1939 Act.
(l) The Subordinated Debentures have been duly authorized by the Company and,
at the Closing Time, will have been duly executed by the Company and, when
authenticated in the manner provided for in the Indenture and delivered against
payment therefor as described in the Prospectus, will constitute valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms, subject to the Bankruptcy Exceptions; and the
Subordinated Debentures will be in the forms contemplated by, and entitled to
the benefits of, the Indenture and will conform in all material respects to the
descriptions thereof in the Prospectus.
(m) The issuance and sale by the Trust of the Trust Preferred Securities and
the Common Securities and the execution and delivery by the Trust of, and the
performance by the Trust of its obligations under, the Operative Documents do
not and will not contravene any provision of applicable law, the Trust Agreement
or the certificate of trust of the Trust, or any agreement or other instrument
binding upon the Trust, the effect of which is materially adverse to the
condition, financial or otherwise, of the Trust, or any judgment, order or
decree of any governmental body, agency or court having jurisdiction over the
Trust. No approval, authorization or consent of any court or governmental
authority or agency is required on the part of the Trust in connection with the
consummation of the transactions contemplated by the Operative Documents, except
such as have been obtained or will have been obtained prior to the Closing Time
or as may be required under state securities laws.
(n) The execution and delivery by the Company of, and the performance by the
Company of its obligations under, the Operative Documents and the Subordinated
Debentures, as applicable, do not and will not contravene any provision of
applicable law, the Articles of Incorporation or the Bylaws of the Company, or
any agreement or other instrument binding upon the Company, the effect of which
is materially adverse to
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the condition, financial or otherwise, or in the earnings, business affairs or
operations of the Company, or any judgment, order or decree of any governmental
body, agency or court having jurisdiction over the Company. No approval,
authorization or consent of any court or governmental authority or agency is
required on the part of the Company in connection with the consummation of the
transactions contemplated by the Operative Documents, except such as have been
obtained or will have been obtained prior to the Closing Time or as may be
required under state securities laws.
(o) Neither the Trust nor the Company is in violation of its respective
organizational documents or in default in the performance or observation of any
obligation, agreement, covenant or condition contained in any contract or
agreement to which it is a party or by which it or any of its properties may be
bound, which violation or default, the effect of which is materially adverse to
the condition, financial or otherwise, or in the earnings, business affairs or
operations of the Trust or the Company.
(p) There are no legal or governmental proceedings pending or, to the knowledge
of the Trust or the Company, threatened to which the Trust or the Company is a
party or to which any of the properties of the Trust or the Company is subject,
other than proceedings accurately described in all material respects in the
Prospectus, the effect of which is materially adverse to the condition,
financial or otherwise, or in the earnings, business affairs or operations of
the Company or on the power or ability of the Trust or the Company to perform
its obligations under the Operative Documents or the Securities, as applicable.
(q) Neither the Trust nor the Company is, and following consummation of the
transactions contemplated by the Operative Documents neither will be, an
"investment company" or a company "controlled" by an "investment company" which
is required to be registered under the Investment Company Act of 1940, as
amended (the "1940 Act").
(r) The Company is a "holding company" within the meaning of that term as
defined in the Public Utility Holding Company Act of 1935, as amended (the "1935
Act"), and at the Closing Time, an order or orders of the Commission pursuant to
the 1935 Act permitting the offering contemplated hereby will be in full force
and effect.
SECTION 2. Offering. The Underwriters have advised the Company that the
--------
Underwriters propose to make an offering of the Trust Preferred Securities
purchased by the Underwriters for sale on the terms set forth in the Prospectus.
SECTION 3. Purchase and Delivery. On the basis of the representations and
---------------------
warranties contained herein and subject to the terms and conditions herein set
forth, the Trust agrees to sell to each Underwriter, severally and not jointly,
and each Underwriter, severally and not jointly, agrees to purchase from the
Trust, at a price of $_______ per Trust Preferred Security, the number of Trust
Preferred Securities set forth in Schedule I opposite the name of such
Underwriter, plus any additional Trust Preferred Securities which such
Underwriter may become obligated to purchase pursuant to the provisions of
Section 8 hereof.
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(b) Deliveries of certificates for the Trust Preferred Securities
shall be made at the offices of the Underwriters in New York (or at the offices
of [Underwriters' Counsel] specified below in the case of Trust Preferred
Securities registered in the name of Cede & Co.), and payment of the purchase
price for the Trust Preferred Securities shall be made by the Representative, on
behalf of the several Underwriters, to the Trust by wire transfer of immediately
available funds contemporaneous with closing at the offices of [Underwriters'
Counsel], [Office Address of Underwriters' Counsel], at 10:00 A.M. on
______________ ___, 200__ (unless postponed in accordance with the provisions of
Section 8), or such other time not later than ten business days after such date
as shall be agreed upon in a writing signed by the Representative and the
Offerors (such time and date of payment and delivery being herein called the
"Closing Time").
Payment for the Trust Preferred Securities purchased by the Underwriters
shall be made to the Trust by wire transfer of immediately available funds,
against delivery for the respective accounts of the Underwriters of certificates
for the Trust Preferred Securities. Certificates for the Trust Preferred
Securities shall be in definitive or global form and in such denominations as
the Underwriters may request in writing at least one business day before the
Closing Time. It is understood that each Underwriter has authorized the
Representative, for its account, to accept delivery of, receipt for, and make
payment of the purchase price for, the Trust Preferred Securities which it has
agreed to purchase. The certificates representing the Trust Preferred Securities
shall be registered in the name of Cede & Co. pursuant to the DTC Agreement and
shall be made available for examination by the Underwriters in the City of New
York not later than 10:00 A.M. on the last business day prior to the Closing
Time.
(c) As compensation to the Underwriters for their commitments
hereunder and in view of the fact that the proceeds of the sale of the Trust
Preferred Securities will be used to purchase Subordinated Debentures of the
Company (which purchase was arranged by the Underwriters), the Company hereby
agrees to pay at the Closing Time to the Representative by wire transfer in
immediately available funds, for the accounts of the several Underwriters,
$_______ per Capital Security to be delivered by the Company hereunder at the
Closing Time.
SECTION 4. Conditions to Closing. The several obligations of the
---------------------
Underwriters under this Agreement to purchase the Trust Preferred Securities
will be subject to the following conditions:
(a) Subsequent to the date of this Agreement and prior to the
Closing Date,
(i) there shall not have occurred any downgrading of
the Company's or the Trust's securities by any "nationally recognized
statistical rating organization," as such term is defined for
purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, the
effect of which is materially adverse to the condition, financial or
otherwise, or
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<PAGE>
in the earnings, business affairs or operations of the Company or the
Trust from that set forth in the Prospectus and that makes it
impracticable, in the Underwriters' judgment, to market the Trust
Preferred Securities on the terms and in the manner contemplated in
the Prospectus.
(b) At the Closing Time, the Underwriters shall have received
certificates, dated as of the Closing Time and signed by the Chairman of the
Board, Chief Executive Officer, President or any Executive or Senior Vice
President of the Company and an Administrative Trustee of the Trust, to the
effect set forth in clause (a) above and to the effect that the representations
and warranties of the Company and the Trust, as the case may be, contained in
this Agreement are true and correct as of the Closing Time and that each of the
Company and the Trust has complied with all of the agreements and satisfied all
of the conditions on its part to be performed or satisfied on or before the
Closing Time.
The officer and Administrative Trustee signing and delivering such
certificates may rely upon the best of his or her knowledge as to proceedings
threatened.
(c) At the Closing Time, the Underwriters shall have received the
favorable opinion, dated as of the Closing Time, of McGuire, Woods, Battle &
Boothe LLP, counsel for the Offerors, in form and substance satisfactory to
counsel for the Underwriters.
(d) At the Closing Time, the Underwriters shall have received the
favorable opinion, dated as of the Closing Time, of Richards, Layton and Finger,
special Delaware counsel to the Offerors, in form and substance satisfactory to
counsel for the Underwriters.
(e) At the Closing Time, the Underwriters shall have received the
favorable opinion, dated as of the Closing Time, of Richards, Layton & Finger,
counsel to Chase Manhattan Bank Delaware, as Delaware Trustee under the Trust
Agreement, in form and substance satisfactory to counsel for the Underwriters.
(f) At the Closing Time, the Underwriters shall have received an
opinion, dated as of the Closing Time, of McGuire, Woods, Battle & Boothe LLP,
special tax counsel to the Offerors, that (i) the Subordinated Debentures will
be classified for United States federal income tax purposes as indebtedness of
the Company, (ii) the Trust will be classified for United States federal income
tax purposes as a grantor trust and not as an association taxable as a
corporation and (iii) subject to the qualifications set forth therein, the
discussion set forth in the Prospectus under the heading "Certain Federal Income
Tax Consequences" represents, in all material respects, a fair and accurate
summary of the United States federal income tax consequences of the purchase,
ownership and disposition of the Trust Preferred Securities under current law
and the opinion contained therein is confirmed as of the date of such opinion.
Such opinion may be conditioned on, among other things, the initial and
continuing accuracy of the facts, financial and other information, covenants and
representations set forth in certificates of officers of the Company and other
documents deemed necessary for such opinion.
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<PAGE>
(g) At the Closing Time, the Underwriters shall have received
the favorable opinion, dated as of the Closing Time, of [Underwriters' Counsel],
counsel for the Underwriters with respect to such matters relating to the
offering contemplated hereby as the Underwriters may reasonably request.
(h) At the time of execution of this Agreement and at the
Closing Time, the Underwriters shall have received a letter or letters, as the
case may be, dated as of the date hereof and/or as of the Closing Time, in form
and substance satisfactory to the Underwriters, from the Company's independent
public accountants, containing statements and information of the type ordinarily
included in accountants' SAS 72 "comfort letters" to underwriters with respect
to the financial statements and certain financial information contained in or
incorporated by reference into the Prospectus.
(i) At the Closing Time, the Underwriters shall have received
the favorable opinion, dated as of the Closing Time, of Cravath, Swaine & Moore,
counsel for the Debenture Trustee, the Guarantee Trustee and the Property
Trustee, in form and substance reasonably satisfactory to counsel for the
Underwriters.
SECTION 5. Covenants of the Offerors. In further consideration of the
-------------------------
agreements of the Underwriters contained in this Agreement, the Offerors jointly
and severally covenant as follows:
(a) The Company, at or prior to the Closing Time, will deliver
to the Underwriters conformed copies of the Registration Statement as originally
filed, including all exhibits, any related preliminary prospectus supplement,
the Prospectus and all amendments and supplements to each such document, in each
case as soon as available and in such quantities as are reasonably requested by
the Underwriters.
(b) Before amending or supplementing the Registration Statement
of the Prospectus, to furnish to the Underwriters a copy of each such proposed
amendment or supplement and not to use any such proposed amendment or supplement
to which the Underwriters reasonably object.
(c) If, during the time when a prospectus relating to the
Securities is required to be delivered under the Securities Act, any event shall
occur as a result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or if it is necessary at any time to
amend the Prospectus to comply with the Securities Act, the Company promptly
will (i) notify the Underwriters to suspend solicitation of purchases of the
Securities and (ii) at its expense, prepare and file with the Commission an
amendment or supplement which will correct such statement or omission or an
amendment which will effect such compliance. In case any Underwriter is required
to deliver a prospectus in connection with the sale of any Securities after the
expiration of the period specified in the preceding sentence, the Company, upon
the request of the Underwriter, will furnish to the Underwriter, at the expense
of such Underwriter, a reasonable quantity of a supplemented or amended
prospectus, or supplements or amendments to the Prospectus, complying with
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<PAGE>
Section 10(a) of the Securities Act. During the period specified in the second
sentence of this Section (c), the Company will continue to prepare and file with
the Commission on a timely basis all documents or amendments required under the
Securities Exchange Act and the applicable rules and regulations of the
Commission thereunder; provided, that the Company shall not file such documents
or amendments without also furnishing copies thereof to the Underwriter and
[Underwriter's Counsel].
(d) To furnish such proper information as may be lawfully
required and otherwise cooperate in qualifying the Trust Preferred Securities
for offer and sale under the securities laws of such jurisdictions as the
Underwriters may designate; provided, however, that the Company shall not be
required in any state to qualify as a foreign corporation, or to file a general
consent to service of process, or to submit to any requirements which it deems
unduly burdensome.
(e) Whether or not any sale of such Trust Preferred Securities
is consummated, to pay all expenses incident to the performance of its
obligations under this Agreement, including: (i) the preparation and filing of
the Registration Statement and the Prospectus and all amendments and supplements
thereto, (ii) the preparation, issuance and delivery of the Securities, (iii)
the reasonable out of pocket fees and disbursements of the Offerors' outside
counsel and accountants, the Debenture Trustee and Guarantee Trustee and any
counsel, and the Trustees and any counsel, (iv) the qualification of such
Securities under state securities laws in accordance with the provisions of
Section 5(d), including filing fees and the fees and disbursements of counsel
for the Underwriters in connection therewith and in connection with the
preparation of any Blue Sky or legal investment memoranda, (v) the printing and
delivery to the Underwriters in quantities as hereinabove stated of copies of
the Prospectus and any amendments or supplements thereto, (vi) any fees charged
by rating agencies for the rating of such Securities, and (vii) the fees and
expenses, if any, incurred in connection with the admission of such Securities
for trading in any appropriate market system or clearing with any appropriate
clearing system.
(f) During the period beginning on the date of the Purchase
Agreement and continuing to the Closing Time, the Company and Trust will not
offer, sell, contract to sell or otherwise dispose of any Trust Preferred
Securities, any other beneficial interest in the assets of the Trust, or any
other securities of the Trust or any other similar trust affiliated with the
Guarantor which are substantially similar to the Trust Preferred Securities,
without the prior written consent of the Representative.
(g) The Trust will use the net proceeds received by it from the
sale of the Trust Preferred Securities, and the Company will use the proceeds
received by it from the sale of the Subordinated Debentures, in the manners
specified in the Prospectus under "Use of Proceeds."
(h) The Company will make generally available to its security
holders, as soon as it is practicable to do so, an earnings statement of the
Company (which need not be audited) in reasonable detail, covering a period of
at least 12 months beginning within
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three months after the effective date of the Registration Statement, which
earnings statement shall satisfy the requirements of Section 11(a) of the
Securities Act.
(i) [The Company will use its best efforts to cause the Trust
Preferred to be listed on the New York Stock Exchange, subject to official
notice of issuance.]
SECTION 6. Indemnification and Contribution.
--------------------------------
(a) The Offerors jointly and severally, agree to indemnify and
hold harmless each Underwriter, their respective directors, officers and each
person, if any, who controls such Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the Securities Exchange Act,
from and against any and all losses, claims, damages and liabilities, and to
reimburse each such Underwriter and each such director, officer, employee or
controlling person promptly upon demand for any legal or other expenses
(including, to the extent hereinafter provided, reasonable out of pocket outside
counsel fees) incurred by it or them in connection with investigating or
defending or preparing to defend against any such losses, claims, damages or
liabilities arising out of or based upon any untrue statement or alleged untrue
statement of a material fact contained in the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or any omission or alleged omission to state therein a material fact
necessary to make the statements therein in light of the circumstances under
which they were made not misleading, except insofar as such losses, claims,
damages or liabilities arise out of or are based upon any such untrue statement
or omission or alleged untrue statement or omission based upon information
relating to any Underwriter furnished to the Company in writing by such
Underwriter through the Underwriters expressly for use therein; provided,
however, that the foregoing indemnity, insofar as it relates to the preliminary
prospectus, shall not inure to the benefit of any indemnified person if the
person asserting any such loss, claim or damage purchased Trust Preferred
Securities from an Underwriter and if a copy of the Prospectus (correcting the
preliminary prospectus) was not delivered by the Underwriter or on its behalf to
such person at, prior to or promptly following the written confirmation of the
sale of the Trust Preferred Securities to such person, unless such failure to
deliver the Prospectus was a result of non- compliance by the Company with
Section [5(a), (b) or (c)] hereof.
(b) The Company agrees to indemnify the Trust against all loss,
liability, claim, damage and expense whatsoever, as due from the Trust under
Section 6(a).
(c) Each Underwriter agrees, severally and not jointly, to
indemnify, hold harmless and reimburse the Offerors, their respective directors,
officers and each person, if any, who controls either of the Offerors within the
meaning of either Section 15 of the Securities Act or Section 20 of the
Securities Exchange Act to the same extent as the foregoing indemnity from the
Offerors to such Underwriter, but only with reference to information relating to
such Underwriter furnished to the Company in writing by such Underwriter through
the Underwriters expressly for use in the Prospectus or any amendments or
supplements thereto. The indemnity agreement of the respective
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Underwriters contained in this Section shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of the Company,
or any such other Underwriter or any such controlling person, and shall survive
the delivery of the Trust Preferred Securities.
(d) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either Section 6(a) or 6(c) above, such
person (the "indemnified party") shall promptly notify the person against whom
such indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, but the omission so
to notify such indemnifying party or parties of any such action shall not
relieve such indemnifying party or parties from any liability which it or they
may have to the indemnified party otherwise than on account of such indemnity
agreement. In case such notice of any such action shall be so given, such
indemnifying party shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the reasonable
out of pocket fees and disbursements of such outside counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be at
the expense of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel or
(ii) the named parties to any such proceeding (including any impleded parties)
include both the indemnifying party and the indemnified party and representation
of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel if necessary,
reasonably satisfactory to all parties) for all such indemnified parties and
that all such fees and expenses shall be reimbursed as they are incurred. Such
firm shall be designated in writing by the Representative in the case of parties
indemnified pursuant to Section 6(a) above and by the Company in the case of
parties indemnified pursuant to Section 6(c) above. The indemnifying party shall
not be liable for any settlement of any litigation, investigation or proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss, claim damage,
expense or liability by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel as contemplated by the second and third sentences of this paragraph,
the indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such
settlement. 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
12
<PAGE>
an unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding and does not include a statement
as to, or an admission of, fault, culpability or a failure to act by or on
behalf of any indemnified party.
(e) To the extent the indemnification provided for in Section
6(a) or 6(c) is unavailable to an indemnified party or insufficient in respect
of any losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
fault of the Offerors, on the one hand, and of the Underwriters, on the other,
in connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations, including relative benefit. The
relative fault 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 required to be stated therein or
necessary in order to make the statements therein not misleading relates to
information supplied by the Offerors on the one hand or by the Underwriters on
the other and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The parties hereto
agree that it would not be just and equitable if contribution pursuant to this
Section 6(e) were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations referred
to above in this Section 6(e). The amount paid or payable by an indemnified
party as a result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above in this Section 6(e) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim. 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
who was not guilty of such fraudulent misrepresentation.
SECTION 7. Termination. This Agreement shall be subject to termination by
-----------
notice given by the Underwriters to the Company, if (a) after the execution and
delivery of this Agreement and prior to the Closing Time, (i) trading generally
shall have been suspended or materially limited on or by, as the case may be,
any of the New York Stock Exchange, the American Stock Exchange, the Nasdaq
Stock Market, the Chicago Board of Options Exchange, the Chicago Mercantile
Exchange or the Chicago Board of Trade, (ii) trading of any securities of the
Company shall have been suspended on any exchange or in any over-the-counter
market, (iii) a general moratorium on commercial banking activities in New York
shall have been declared by either federal or New York State authorities or (iv)
there shall have occurred any outbreak or escalation of hostilities or any
change in financial markets or any calamity or crisis that, in the Underwriters'
judgment, is material and adverse and (b) in the case of any of the events
specified in clauses (a)(i) through (iv), such event singly or together with any
other such event makes it, in the Underwriters' judgment, impracticable to
market the Trust Preferred Securities on the terms and in the manner
contemplated in the Prospectus.
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SECTION 8. Miscellaneous. If, as of the Closing Time, any one or more of
-------------
the Underwriters shall fail or refuse to purchase Trust Preferred Securities
that it or they have agreed to purchase hereunder on such date, and the
aggregate number of Trust Preferred Securities which such defaulting Underwriter
or Underwriters agreed but failed or refused to purchase is not more than
one-tenth of the aggregate number of Trust Preferred Securities to be purchased
on such date, the other Underwriters shall be obligated severally in the
proportions that the number of Trust Preferred Securities set forth opposite
their respective names in Schedule I bears to the aggregate number of Trust
Preferred Securities set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as the non-defaulting Underwriters
may specify, to purchase the Trust Preferred Securities which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on such
date; provided, however, that in no event shall the number of Trust Preferred
Securities that any Underwriter has agreed to purchase pursuant to Section 3 be
increased pursuant to this Section 8 by an amount in excess of one-ninth of such
number of Trust Preferred Securities without the written consent of such
Underwriter. If on the Closing Date, any Underwriter or Underwriters shall fail
or refuse to purchase Trust Preferred Securities which it or they have agreed to
purchase hereunder on such date and the aggregate number of Trust Preferred
Securities with respect to which such default occurs is more than one-tenth of
the number of Trust Preferred Securities to be purchased on such date and
arrangements satisfactory to the non-defaulting Underwriters and the Company for
the purchase of such Trust Preferred Securities are not made within 36 hours
after such default, this Agreement shall terminate without liability on the part
of any non-defaulting Underwriter or of the Company. In any such case either the
Underwriters or the Company shall have the right to postpone the Closing Time,
but in no event for longer than seven days, in order that the required changes,
if any, in the Prospectus or in any other documents or arrangements may be
effected. Any action taken under this paragraph shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
This Agreement may be signed in any number of counterparts, each of which
shall be an original, with the same effect as if the signatures thereto and
hereto were upon the same instrument.
If this Agreement shall be terminated by the Underwriters, or any of them,
because of any failure or refusal on the part of the Company to comply with the
terms or to fulfill any of the conditions of this Agreement, or if for any
reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder; and such termination shall be without
liability of any party to any other party except as provided in Section 5(e).
Section 7, this Section 8 and all representations, warranties and
agreements contained in this Agreement, or in certificates of officers of the
Company or trustees of the Trust submitted hereunder, shall remain operative and
in full force and effect
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regardless of (i) any termination of this Agreement; (ii) any investigation made
by or on behalf of the Underwriters or any person controlling any Underwriter or
by or on behalf of the Trust, the Trustees, the Company, its officers or
directors or any other person controlling the Company; and (iii) acceptance of
payment for any of the Trust Preferred Securities.
This Agreement shall be governed by and construed in accordance with the
internal laws of the State of New York.
The headings of the sections of this Agreement have been inserted for
convenience of reference only and shall not be deemed a part of this Agreement.
15
<PAGE>
Please confirm your agreement to the foregoing by signing in the space
provided below for that purpose and returning to us a copy hereof, whereupon
this Agreement shall constitute a binding agreement between us.
Very truly yours,
DOMINION RESOURCES CAPITAL TRUST [ ]
By: DOMINION RESOURCES, INC., as
Depositor
By:_________________________________
Name:
Title:
DOMINION RESOURCES, INC.
By:_________________________________
Name:
Title:
Agreed, this ___ day of December, 1997
[Representative]
Acting severally on behalf of itself and the
several Underwriters named herein.
[Representative]
By:_________________________________
Name:
Title:
16
<PAGE>
Exhibit 1(v)
DOMINION RESOURCES, INC.
Stock Purchase Units
FORM OF UNDERWRITING AGREEMENT
[Date]
[Name of Underwriter]
[Address of Underwriter]
Ladies and Gentlemen:
Dominion Resources Inc., a Virginia corporation (the Company), confirms its
agreement with [Name of Underwriter] (the Underwriter), with respect to the
issue and sale by the Company and purchase by the Underwriter of ______ Stock
Purchase Units (SPUS) (the Firm SPUS). In addition, the Company proposes to
grant to the Underwriter an option to purchase up to an additional _____ SPUS on
the terms and for the purposes set forth in Section 2 (the Option SPUS). The
Firm SPUS and the Option SPUS, if purchased, are hereinafter collectively called
the SPUS. Capitalized terms used herein without definition shall be used as
defined in the Prospectus (as hereinafter defined).
Each SPUS will initially consist of a unit (a Corporate SPUS) comprised of
(a) a stock purchase contract (a Purchase Contract) under which (i) the holder
will purchase from the Company no later than [ ], 200__, for $__, a number of
shares of common stock, no par value, of the Company (the Common Stock), equal
to the Settlement Rate as set forth in the Purchase Contract Agreement (as
hereinafter defined) and (ii) the Company will pay to the holder contract
adjustment payments and (b) a share of the Company's Series __ Preferred Stock,
liquidation preference $__ per share (the Preferred Stock). In accordance with
the terms of a Purchase Contract Agreement (the Purchase Contract Agreement) to
be entered into between the Company and [Name of Purchase Contract Agent ], as
Purchase Contract Agent (the Purchase Contract Agent), the holders of the SPUS
will pledge the Preferred Stock to [Name of Collateral Agent], as Collateral
Agent (the Collateral Agent), pursuant to a Pledge Agreement (the Pledge
Agreement) to be entered into among the Company, the Purchase Contract Agent,
[Name of Securities Intermediary], as Securities Intermediary (the Securities
Intermediary), and the
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Collateral Agent, to secure the holders' obligations to purchase Common Stock
under the Purchase Contracts.
This is to confirm the agreement concerning the purchase of the SPUS by the
Underwriter.
1. Representations, Warranties And Agreements Of The Company. The Company
---------------------------------------------------------
represents, warrants and agrees that:
(a) A registration statement, No. 333-______ on Form S-3 for the registration
of the SPUS and certain other securities of the Company under the Securities Act
of 1933, as amended (the Securities Act), heretofore filed with the Securities
and Exchange Commission (the Commission), a copy of which as so filed has been
delivered to you, has become effective. The registration statement, including
all exhibits thereto, as amended through the date hereof, is hereinafter
referred to as the "Registration Statement"; the prospectus relating to the SPUS
and other securities included in the Registration Statement, which prospectus is
now proposed to be supplemented by a supplement relating to the SPUS to be filed
with the Commission under the Securities Act, as so supplemented, is hereinafter
referred to as the "Prospectus". As used herein, the terms "Registration
Statement", "prospectus" and "Prospectus" include all documents (including any
Current Report on Form 8-K) incorporated therein by reference, and shall include
any documents (including any Current Report on Form 8-K) filed after the date of
such Registration Statement, prospectus or Prospectus and incorporated therein
by reference from the date of filing of such incorporated documents
(collectively, the Incorporated Documents).
(b) No order suspending the effectiveness of the Registration Statement or
otherwise preventing or suspending the use of the Prospectus has been issued by
the Commission and is in effect and no proceedings for that purpose are pending
before or, to the knowledge of the Company, threatened by the Commission. The
Registration Statement and the Prospectus comply in all material respects with
the provisions of the Securities Act, the Securities Exchange Act of 1934, as
amended (the Securities Exchange Act), and the rules, regulations and releases
of the Commission thereunder (the Rules and Regulations) and, on the date
hereof, neither the Registration Statement nor the Prospectus 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, and,
on the Delivery Date, the Registration Statement and the Prospectus (including
any amendments and supplements thereto) will conform in all respects to the
requirements of the Securities Act and the Rules and Regulations, and neither of
such documents will include any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, that the foregoing representations
and warranties in this Section 1(b) shall not apply to statements in or
omissions from the Registration Statement or the Prospectus made in reliance
upon information furnished herein or in writing to the Company by the
Underwriter or on the Underwriter's behalf for use in the Registration Statement
or Prospectus; and provided, further, that the foregoing representations and
warranties are given on the basis that any statement contained in an
Incorporated Document shall be deemed not to be contained in the Registration
Statement or Prospectus if the statement has been modified or superseded by any
statement in a subsequently filed Incorporated Document or in the Registration
Statement or Prospectus or in any amendment or supplement thereto.
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<PAGE>
(c) The shares of Common Stock to be issued and sold by the Company pursuant
to the Purchase Contracts have been duly and validly authorized and reserved for
issuance and, when issued and delivered in accordance with the provisions of the
Purchase Contracts, will be duly and validly issued, fully paid and non-
assessable and will not be subject to any preemptive rights of any person.
(d) The Corporate SPUS have been duly authorized by the Company, and when
duly executed by the Company (assuming due execution by the Purchase Contract
Agent as attorney-in-fact for the holders thereof and due authentication by the
Purchase Contract Agent) and delivered by the Company and upon payment therefor
as set forth herein, will be duly and validly issued and outstanding, and will
constitute valid and binding obligations of the Company entitled to the benefits
of the Purchase Contract Agreement and enforceable against the Company in
accordance with their terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally or by general equitable
principles (regardless of whether enforcement is considered in a proceeding in
equity or at law) (the Bankruptcy Exceptions) and an implied covenant of good
faith and fair dealing.
(e) The shares of Preferred Stock have been duly authorized by the Company
and, when issued and delivered against payment therefor as provided herein, will
be duly and validly issued, fully paid and non-assessable and will not be
subject to any preemptive rights of any person.
(f) The Purchase Contract Agreement has been duly authorized by the Company
and, when duly executed by the proper officers of the Company (assuming due
execution and delivery by the Purchase Contract Agent) and delivered by the
Company, will constitute a valid and binding agreement of the Company
enforceable against the Company in accordance with its terms, except as the
enforcement thereof may be limited by the Bankruptcy Exceptions and an implied
covenant of good faith and fair dealing.
(g) The Pledge Agreement has been duly authorized by the Company and, when
duly executed by the proper officers of the Company (assuming due execution and
delivery by the Purchase Contract Agent, the Securities Intermediary and the
Collateral Agent) and delivered by the Company, will constitute a valid and
binding agreement of the Company enforceable against the Company in accordance
with its terms, except as the enforcement thereof may be limited by the
Bankruptcy Exceptions and an implied covenant of good faith and fair dealing.
(h) This Agreement has been duly authorized, executed and delivered by the
Company; and the Remarketing Agreement (the Remarketing Agreement) to be entered
into by the Company and Underwriter as Remarketing Agent, has been duly
authorized by the Company and, when executed and delivered by the Company, will
constitute a valid and binding agreement of the Company enforceable against the
Company in accordance with its terms, except as the
3
<PAGE>
enforcement thereof may be limited by the Bankruptcy Exceptions, an implied
covenant of good faith and fair dealing and public policy considerations.
(i) The Corporate SPUS, the Preferred Stock, the Common Stock to be issued
and sold pursuant to the Purchase Contracts, the Purchase Contract Agreement,
the Pledge Agreement and the Remarketing Agreement, when the Corporate SPUS are
delivered pursuant to this Agreement, will conform to the descriptions thereof
contained in the Prospectus.
(j) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, except as otherwise stated therein,
there has been no material adverse change in the condition of the Company,
financial or otherwise (Material Adverse Effect).
(k) The Company has been duly organized and is validly existing as a
corporation, is in good standing under the laws of its jurisdiction and has all
necessary corporate power and authority to own, lease and operate its properties
and to conduct its business as described in the Prospectus; and the Company is
duly qualified as a foreign corporation to transact business and is in good
standing in each other jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure so to qualify or to be in good standing would
not result in a Material Adverse Effect.
(l) (i) The execution, delivery and performance of this Agreement and the
issuance and sale of the SPUS will not result in a material breach or violation
of any of the terms and provisions of, or constitute a default under, any
statute, rule, regulation or order of any governmental agency or body or any
court having jurisdiction over the Company or any Significant Subsidiary (as
defined in Rule 1-01(w) of Regulation S-X) or any of their properties or any
agreement or instrument to which the Company is a party or by which the Company
is bound or to which any of the properties of the Company is subject, or the
articles of incorporation or bylaws of the Company, and the Company has full
power and authority to authorize, issue and sell the SPUS as contemplated by
this Agreement.
(ii) All of the issued and outstanding capital stock of each Significant
Subsidiary has been duly authorized and validly issued, is fully paid and non-
assessable and, the common capital stock is owned by the Company, directly or
through subsidiaries, free and clear of any security interest, mortgage, pledge,
lien, encumbrance, claim or equitable right.
2. Purchase Of The Spus By The Underwriter. On the basis of the
---------------------------------------
representations and warranties contained in, and subject to the terms and
conditions of, this Agreement, the Company agrees to sell _____ Firm SPUS to the
Underwriter and the Underwriter agrees to purchase ______ Firm SPUS.
In addition, the Company grants to the Underwriter an option to purchase up to
_____ Option SPUS. Such option is granted solely for the purpose of covering
over-allotments in the sale of the Firm SPUS and is exercisable as provided in
Section 4 hereof.
4
<PAGE>
The price of both the Firm SPUS and any Option SPUS shall be $[ ] per SPUS.
The Company shall not be obligated to deliver any of the SPUS to be delivered
on the First Delivery Date (as hereinafter defined) or the Second Delivery Date
(as hereinafter defined), as the case may be, except upon payment for all the
SPUS to be purchased on such Delivery Date as provided herein.
3. Public Offering. The Underwriter proposes to offer the Firm SPUS for sale
---------------
upon the terms and conditions set forth in the Prospectus.
4. Time and Place of Closing. Delivery of and payment for the SPUS shall be
-------------------------
made at the office of [LOCATION], at 10:00 A.M., New York City time, on the
third full business day following the date of this Agreement (unless the sale of
the SPUS hereunder has been priced after 4:30 p.m. Eastern time on the date of
this Agreement, in which case the fourth full business day following the date of
this Agreement) or at such other date or place as shall be determined by
agreement between the Underwriter and the Company. This date and time are
sometimes referred to as the First Delivery Date. On the First Delivery Date,
the Company, through the facilities of The Depository Trust Company (DTC), shall
deliver or cause to be delivered a securities entitlement with respect to the
Firm SPUS to the Underwriter against payment to or upon the order of the Company
of the purchase price by wire transfer of immediately available funds to a bank
account designated by the Company. Time shall be of the essence, and delivery at
the time and place specified pursuant to this Agreement is a further condition
of the obligation of the Underwriter hereunder. Upon delivery, the Firm SPUS
shall be registered in the name of Cede & Co., as nominee for DTC.
At any time on or before the thirtieth day after the date of this Agreement
the option granted in Section 2 may be exercised by written notice being given
to the Company by the Underwriter. Such notice shall set forth the aggregate
number of Option SPUS as to which the option is being exercised, the names in
which the Option SPUS are to be registered, the denominations in which the
Option SPUS are to be issued and the date and time, as determined by the
Underwriter, when the Option SPUS are to be delivered; PROVIDED, HOWEVER, that
this date and time shall not be earlier than the First Delivery Date nor earlier
than the second business day after the date on which the option shall have been
exercised nor later than the fifth business day after the date on which the
option shall have been exercised. The date and time the Option SPUS are
delivered are sometimes referred to as the Second Delivery Date and the First
Delivery Date and the Second Delivery Date are sometimes each referred to as a
Delivery Date.
Delivery of and payment for the Option SPUS shall be made at the place
specified in the first sentence of the first paragraph of this Section 4 (or at
such other place as shall be determined by agreement between the Underwriter and
the Company) at 10:00 A.M., New York City time, on the Second Delivery Date. On
the Second Delivery Date, the Company, through the facilities of DTC, shall
deliver or cause to be delivered a securities entitlement with respect to the
Option SPUS to the Underwriter against payment to or upon the order of the
Company of the purchase price by wire transfer of immediately available funds to
a bank account designated by the Company. Time shall be of the essence, and
delivery at the time and place specified
5
<PAGE>
pursuant to this Agreement is a further condition of the obligation of the
Underwriter hereunder. Upon delivery, the Option SPUS shall be registered in the
name of Cede & Co., as nominee of DTC.
The Preferred Stock underlying the SPUS will be pledged with the Collateral
Agent to secure the holders' obligations to purchase Common Stock under the
Purchase Contracts. Such pledge shall be effected by the transfer to the
Securities Intermediary of the Preferred Stock to be pledged to the Collateral
Agent in accordance with the Pledge Agreement.
5. Covenants of the Company. The Company agrees that:
------------------------
(a) The Company, at or prior to the Delivery Date, will deliver to the
Underwriter conformed copies of the Registration Statement as originally filed,
including all exhibits, any related preliminary prospectus supplement, the
Prospectus and all amendments and supplements to each such document, in each
case as soon as available and in such quantities as are reasonably requested by
the Underwriter.
(b) The Company will pay all expenses in connection with (i) the preparation
and filing by it of the Registration Statement, any related preliminary
prospectus supplement and the Prospectus and the printing of this Agreement,
(ii) the costs incident to the authorization, issuance, sale and delivery of the
Preferred Stock, Purchase Contracts, Common Stock to be issued and sold pursuant
to the Purchase Contracts and SPUS, (iii) the printing and delivery to the
Underwriter in reasonable quantities of copies of the Registration Statement and
the Prospectus (each as originally filed and as subsequently amended), (iv) any
applicable listing or other fees, (v) any fees charged by securities rating
services for rating the SPUS (or any related security), (vi) the fees and
expenses of the Purchase Contract Agent, the Collateral Agent, the Securities
Intermediary and their respective counsel. The Company also will pay all taxes,
if any, except transfer taxes, on the issue of the SPUS. In addition, the
Company will pay the reasonable out of pocket fees and disbursements of
Underwriter's outside counsel, [Underwriter's Counsel], in connection with the
qualification of the SPUS (or any related security) under state securities or
blue sky laws or investment laws (if and to the extent such qualification is
required by the Underwriter or the Company).
(c) If, during the time when a prospectus relating to the SPUS is required to
be delivered under the Act, any event occurs as a result of which the Prospectus
as then amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or if it is necessary at any time to amend the Prospectus to comply
with the Act, the Company promptly will (i) notify the Underwriter to suspend
solicitation of purchases of the SPUS and (ii) at its expense, prepare and file
with the Commission an amendment or supplement which will correct such statement
or omission or an amendment which will effect such compliance. In case any
Underwriter is required to deliver a prospectus in connection with the sale of
any SPUS after the expiration of the period specified in the preceding sentence,
the Company, upon the request of the Underwriter, will furnish to the
Underwriter, at the expense of such Underwriter, a reasonable quantity of a
supplemented or amended prospectus, or supplements or amendments to the
Prospectus, complying with Section 10(a) of the Securities Act. During the
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<PAGE>
period specified in the second sentence of this Section 5(c), the Company will
continue to prepare and file with the Commission on a timely basis all documents
or amendments required under the Securities Exchange Act and the applicable
rules and regulations of the Commission thereunder; provided, that the Company
shall not file such documents or amendments without also furnishing copies
thereof to the Underwriter and [Underwriter's Counsel].
(d) The Company will advise the Underwriter promptly of any proposal to amend
or supplement the Registration Statement or the Prospectus and will afford the
Underwriter a reasonable opportunity to comment on any such proposed amendment
or supplement; and the Company will also advise the Underwriter promptly of the
filing of any such amendment or supplement and of the institution by the
Commission of any stop order proceedings in respect of the Registration
Statement or of any part thereof and will use its best efforts to prevent the
issuance of any such stop order and to obtain as soon as possible its lifting,
if issued.
(e) The Company will make generally available to its security holders, as
soon as it is practicable to do so, an earnings statement of the Company (which
need not be audited) in reasonable detail, covering a period of at least 12
months beginning within three months after the effective date of the
Registration Statement, which earnings statement shall satisfy the requirements
of Section 11(a) of the Securities Act.
(f) The Company will furnish such proper information as may be lawfully
required and otherwise cooperate in qualifying the SPUS for offer and sale under
the securities or blue sky laws of such states as the Underwriter may designate;
provided, however, that the Company shall not be required in any state to
qualify as a foreign corporation, or to file a general consent to service of
process, or to submit to any requirements which it deems unduly burdensome.
(g) The Company will use its best efforts to cause the SPUS to be listed on
the New York Stock Exchange, subject to official notice of issuance.
(h) Fees and disbursements of [Underwriter's Counsel] who are acting as
counsel for the Underwriter (exclusive of fees and disbursements of such counsel
which are to be paid as set forth in Section 5(b)), shall be paid by the
Underwriter; provided, however, that if this Agreement is terminated in
accordance with the provisions of Sections 7 or 8 hereof, the Company shall
reimburse the Underwriter for the amount of such fees and disbursements.
6. Conditions of Underwriter's Obligations. The obligations of the
---------------------------------------
Underwriter hereunder are subject to the accuracy, when made and on each
Delivery Date, of the representations and warranties of the Company contained
herein or in certificates of any officer of the Company or any subsidiary of the
Company delivered pursuant to the provisions hereof, to the performance by the
Company of its covenants and other obligations hereunder, and to each of the
following additional terms and conditions:
(a) As of each Delivery Date, no stop order suspending the effectiveness
of the Registration Statement shall have been issued under the Securities Act,
and no proceedings for that purpose shall have been instituted or be pending or
threatened by the Commission, and
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<PAGE>
any request on the part of the Commission for additional information shall have
been complied with. The Prospectus shall have been filed with the Commission.
(b) On each Delivery Date, the Underwriter shall have received the opinion,
dated as of such Delivery Date, of McGuire, Woods, Battle & Boothe LLP, counsel
for the Company, in form and substance satisfactory to counsel for the
Underwriter.
(c) On each Delivery Date, the Underwriter shall have received the opinion,
dated as of such Delivery Date, of [Underwriter's Counsel], counsel for the
Underwriter, with respect to the Registration Statement, Prospectus, the
validity of the Preferred Stock, Purchase Contract, Common Stock to be issued
pursuant to the Purchase Contracts and other related matters as the Underwriter
may reasonably request.
(d) [___ ] shall have furnished to the Underwriter its written opinion, as
counsel to [_____], as Purchase Contract Agent, dated such Delivery Date, in
form and substance satisfactory to counsel for the Underwriter, to the effect
that:
(i) The Purchase Contract Agent is duly incorporated as a [ ] banking
corporation with all necessary power and authority to execute, deliver and
perform its obligations under the Purchase Contract Agreement and the Pledge
Agreement.
(ii) The execution, delivery and performance by the Purchase Contract Agent
of the Purchase Contract Agreement and the Pledge Agreement, and the
authentication and delivery of the SPUS, have been duly authorized by all
necessary corporate action on the part of the Purchase Contract Agent. The
Purchase Contract Agreement and the Pledge Agreement have been duly executed and
delivered by the Purchase Contract Agent, and constitute the valid and binding
agreements of the Purchase Contract Agent, enforceable against the Purchase
Contract Agent in accordance with their terms, except as the enforcement thereof
may be limited by the Bankruptcy Exceptions and an implied covenant of good
faith and fair dealing.
(iii) The execution, delivery and performance of the Purchase Contract
Agreement and the Pledge Agreement by the Purchase Contract Agent does not
conflict with or constitute a breach of the charter or by-laws of the Purchase
Contract Agent.
(iv) No consent, approval or authorization of, or registration with or
notice to, any state or federal governmental authority or agency is required for
the execution, delivery or performance by the Purchase Contract Agent of the
Purchase Contract Agreement and the Pledge Agreement.
(e) The Underwriter shall not have discovered and disclosed to the Company on
or prior to such Delivery Date that the Registration Statement or the Prospectus
or any amendment or supplement thereto contains any untrue statement of a fact
which, in the opinion of [Underwriter's Counsel], counsel for the Underwriter,
is material or omits to state any fact which, in the opinion of such counsel, is
material and is required to be stated therein or is necessary to make the
statements therein not misleading.
8
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(f) All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, the Purchase Contract
Agreement, the Pledge Agreement, the Remarketing Agreement, the Purchase
Contracts, the Common Stock to be issues and sold pursuant to the Purchase
Contracts, the Registration Statement and the Prospectus, and all other legal
matters relating to this Agreement and the transactions contemplated hereby,
shall be reasonably satisfactory in all material respects to counsel for the
Underwriter, and the Company shall have furnished to such counsel all documents
and information that they may reasonably request to enable them to pass upon
such matters.
(g) At the time of execution of this Agreement, the Underwriter shall have
received letters from the Company's independent accountants, in form and
substance satisfactory to the Underwriter, addressed to the Underwriter and
dated the date hereof (i) confirming that they are independent public
accountants within the meaning of the Securities Act and are in compliance with
the applicable requirements relating to the qualification of accountants under
Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date
hereof (or, with respect to matters involving changes or developments since the
respective dates as of which specified financial information is given in the
Prospectus, as of a date not more than five days prior to the date hereof), the
conclusions and findings of such firm with respect to the financial information
and other matters ordinarily covered by accountants' "comfort letters" to
underwriters in connection with registered public offerings.
(h) With respect to the letter of the Company's independent accountants
referred to in the preceding paragraph and delivered to the Underwriter
concurrently with the execution of this Agreement (the "initial letters"), the
Company shall have furnished to the Underwriter letters (the "bring-down
letters") of such accountants, addressed to the Underwriter and dated as of such
Delivery Date confirming in all material respects the conclusions and findings
set forth in the initial letter.
(i) The Company shall have furnished to the Underwriter a certificate, dated
such Delivery Date, of its Chairman of the Board or its President or any
Executive Vice President or Senior Vice President of the Company stating that
the representations, warranties and agreements of the Company in Section 1 are
true and correct as of such Delivery Date and that the Company has complied with
all its agreements contained herein and satisfied all the conditions required of
it hereunder.
(j) On each Delivery Date, counsel for the Underwriter shall have been
furnished with such documents and opinions as they may require for the purpose
of enabling them to pass upon the issuance and sale of the SPUS as herein
contemplated, or other legal matters incident to the authorization, form and
validity of this Agreement, the Purchase Contract Agreement, the Pledge
Agreement, the Remarketing Agreement, the Purchase Contracts, the Common Stock
to be issued and sold pursuant to the Purchase Contracts, the Registration
Statement and the Prospectus or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the conditions,
herein contained, and all proceedings taken by the Company in connection with
the issuance and sale of the SPUS as herein contemplated shall be satisfactory
in form and substance to the Underwriter and counsel for the Underwriter.
9
<PAGE>
(k) There shall not have been, since the date hereof, except as reflected in
or contemplated by the Registration Statement and the Prospectus, any material
adverse change in the general affairs, financial condition, or earnings of the
Company or any material transaction entered into by the Company other than a
transaction in the ordinary course of business, the effect of which, in each
such case, in the judgment of the Underwriter, is so material and so adverse
that it makes it inadvisable to proceed with the public offering or delivery of
the SPUS on the terms and in the manner contemplated in the Prospectus and this
Agreement.
(l) Subsequent to the execution and delivery of this Agreement (i) no
downgrading shall have occurred in the rating accorded the Company's or any
significant subsidiary's debt securities or preferred stock by any "nationally
recognized statistical rating organization", as that term is defined by the
Commission for purposes of Rule 436(g)(2) of the Rules and Regulations.
(m) Subsequent to the execution and delivery of this Agreement there shall
not have occurred any of the following: (i) trading in securities generally on
the New York Stock Exchange or the American Stock Exchange or in the over-the-
counter market, or trading in any securities of the Company on any exchange or
in the over-the-counter market, shall have been suspended or minimum prices
shall have been established on any such exchange or such market by the
Commission, by such exchange or by any other regulatory body or governmental
authority having jurisdiction, (ii) a banking moratorium shall have been
declared by Federal or state authorities, (iii) the United States shall have
become engaged in hostilities, there shall have been an escalation in
hostilities involving the United States or there shall have been a declaration
of a national emergency or war by the United States or (iv) there shall have
occurred such a material adverse change in general economic, political or
financial conditions (or the effect of international conditions on the financial
markets in the United States shall be such) as to make it, in the judgment of
the Underwriter, impracticable or inadvisable to proceed with the public
offering or delivery of the SPUS on the terms and in the manner contemplated in
the Prospectus.
(n) There shall be an order of the Commission pursuant to the Holding Company
Act permitting the issuance and sale of the SPUS (and any related security) and
such order shall be in full force and effect and all provisions of such order or
orders heretofore entered are deemed acceptable to the Underwriter and the
Company, and all provisions of such order or orders hereafter entered shall be
deemed acceptable to the Underwriter and the Company unless within 24 hours
after receiving a copy of any such order, either shall give notice to the other
to the effect that such order contains an unacceptable provision.
7. Termination by the Underwriter. In case any of the conditions specified
------------------------------
in Section 6 shall not have been fulfilled, this Agreement may be terminated by
the Underwriter upon mailing or delivering written notice thereof to the
Company. Any such termination shall be without liability of any party to any
other party except as otherwise provided in Section 9 and Sections 5(b) and 5(h)
and this Section 7. If this Agreement shall be terminated by the Underwriter
under this Section or because of any failure or refusal of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason, the Company shall be unable to perform its obligations under this
Agreement, then in any such
10
<PAGE>
case, the Company will reimburse the Underwriter for all out of pocket expenses
(in addition to the fees and disbursements of their outside counsel as provided
in Section 5(b)) reasonably incurred by the Underwriter in connection with this
Agreement or the offering contemplated hereunder and, upon such reimbursement,
the Company shall be absolved of any further liability hereunder, except as
provided in Section 5(b) and 10.
8. Conditions of the Obligation of the Company. The obligation of the Company
-------------------------------------------
to deliver the SPUS shall be subject to the conditions set forth in Sections
6(a) and 6(n). In case such conditions shall not have been fulfilled, this
Agreement may be terminated by the Company by mailing or delivering written
notice thereof to the Underwriter. Any such termination shall be without
liability of either party to the other except as otherwise provided in Sections
5(b) and 9.
9. Indemnification.
---------------
(a) The Company agrees to indemnify and hold harmless the Underwriter and
each person who controls the Underwriter within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Securities Exchange Act, against any and
all losses, claims, damages or liabilities, joint or several, to which they or
any of them may become subject under the Securities Act, the Securities Exchange
Act, or any other statute or common law and to reimburse each such Underwriter
and controlling person for any legal or other expenses (including, to the extent
hereinafter provided, reasonable outside counsel fees) incurred by them in
connection with investigating any such losses, claims, damages, or liabilities,
or in connection with defending any actions, insofar as such losses, claims,
damages, liabilities, expenses or actions arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus, or in either such document as amended
or supplemented (if any amendments or supplements thereto shall have been
furnished), or any preliminary prospectus (if and when used prior to the
effective date of the Registration Statement), or 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; provided that the
foregoing agreement, insofar as it relates to any preliminary prospectus, shall
not inure to the benefit of any Underwriter (or to the benefit of any person who
controls such Underwriter) on account of any losses, claims, damages or
liabilities arising out of the sale of any of the SPUS by such Underwriter to
any person if it shall be established that a copy of the Prospectus, excluding
any documents incorporated by reference (as supplemented or amended, if the
Company shall have made any supplements or amendments which have been furnished
to the Underwriter), shall not have been sent or given by or on behalf of such
Underwriter to such person at or prior to the written confirmation of the sale
to such person in any case where such delivery is required by the Securities
Act, if the misstatement or omission leading to such loss, claim, damage or
liability was corrected in the Prospectus (excluding any documents incorporated
by reference) as amended or supplemented, and such correction would have cured
the defect giving rise to such loss, claim, damage, or liability; and provided
further, however, that the indemnity agreement contained in this Section 9(a)
shall not apply to any such losses, claims, damages, liabilities, expenses or
actions arising out of or based upon any such untrue statement or alleged untrue
statement, or any such omission or alleged omission, if such statement or
omission was made in reliance upon information furnished herein or otherwise in
writing to the Company by or on behalf of any Underwriter for use in the
Registration Statement or any
11
<PAGE>
amendment thereto, in the Prospectus or any supplement thereto, or in any
Preliminary Prospectus. The indemnity agreement of the Company contained in this
Section 9(a) and the representations and warranties of the Company contained in
Section 1 hereof shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of any Underwriter or any such
controlling person, and shall survive the delivery of the SPUS.
(b) The Underwriter agrees to indemnify and hold harmless the Company, its
officers and directors, and each person who controls the Company within the
meaning of Section 15 of the Securities Act or Section 20(a) of the Securities
Exchange Act, against any and all losses, claims, damages or liabilities, joint
or several, to which they or any of them may become subject under the Securities
Act, the Securities Exchange Act, or any other statute or common law and to
reimburse each of them for any legal or other expenses (including, to the extent
hereinafter provided, reasonable outside counsel fees) incurred by them in
connection with investigating any such losses, claims, damages or liabilities or
in connection with defending any actions, insofar as such losses, claims,
damages, liabilities, expenses or actions arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus, or in either such document as amended
or supplemented (if any amendments or supplements thereto shall have been
furnished), or any preliminary prospectus (if and when used prior to the
effective date of the Registration Statement), or 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, if such statement or
omission was made in reliance upon information furnished herein or in writing to
the Company by or on behalf of such Underwriter for use in the Registration
Statement or the Prospectus or any amendment or supplement to either thereof, or
any preliminary prospectus. The indemnity agreement of the Underwriter contained
in this Section 9(b) shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of the Company, or any such
controlling person, and shall survive the delivery of the SPUS.
(c) The Company and the Underwriter agree that, upon the receipt of notice of
the commencement of any action against the Company or any of its officers or
directors, or any person controlling the Company, or against such Underwriter or
controlling person as aforesaid, in respect of which indemnity may be sought on
account of any indemnity agreement contained herein, it will promptly give
written notice of the commencement thereof to the party or parties against whom
indemnity shall be sought hereunder, but the omission so to notify such
indemnifying party or parties of any such action shall not relieve such
indemnifying party or parties from any liability which it or they may have to
the indemnified party otherwise than on account of such indemnity agreement. In
case such notice of any such action shall be so given, such indemnifying party
shall be entitled to participate at its own expense in the defense or, if it so
elects, to assume (in conjunction with any other indemnifying parties) the
defense of such action, in which event such defense shall be conducted by
counsel chosen by such indemnifying party (or parties) and satisfactory to the
indemnified party or parties who shall be defendant or defendants in such
action, and such defendant or defendants shall bear the fees and expenses of any
additional outside counsel retained by them; provided that, if the defendants in
any such action include both the indemnified party and the indemnifying party
(or parties) and the indemnified
12
<PAGE>
party shall have reasonably concluded that there may be legal defenses available
to it and/or other indemnified parties which are different from or additional to
those available to the indemnifying party (or parties), the indemnified party
shall have the right to select separate counsel to assert such legal defenses
and to participate otherwise in the defense of such action on behalf of such
indemnified party. The indemnifying party shall bear the reasonable fees and
expenses of outside counsel retained by the indemnified party if (i) the
indemnified party shall have retained such counsel in connection with the
assertion of legal defenses in accordance with the proviso to the preceding
sentence (it being understood, however, that the indemnifying party shall not be
liable for the expenses of more than one separate counsel, representing the
indemnified parties under Section 9(a) or 9(b), as the case may be, who are
parties to such action), (ii) the indemnifying party shall have elected not to
assume the defense of such action, (iii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the commencement of
the action, or (iv) the indemnifying party has authorized the employment of
counsel for the indemnified party at the expense of the indemnifying party.
Notwithstanding the foregoing sentence, an indemnifying party shall not be
liable for any settlement of any proceeding effected without its written consent
(such consent not to be unreasonably withheld), but if settled with such consent
or if there be a final judgment for the plaintiff, the indemnifying party agrees
to indemnify the indemnified party from and against any loss or liability by
reason of such settlement or judgment. 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 indemnification may be
sought hereunder (whether or not the indemnified party is an actual or potential
party to such a proceeding), 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) If the indemnification provided for in this Section 9 is unavailable to or
insufficient to hold harmless an indemnified party under Section 9(a) or 9(b)
above in respect of any losses, claims, damages or liabilities (or actions in
respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative fault of the
Company, on the one hand, and of the Underwriter, on the other, in connection
with the statements or omissions that resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations, including relative benefit. The relative fault 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 required to be stated therein or necessary in order to make the
statements therein not misleading relates to information supplied by the Company
on the one hand or by you on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Underwriter agree that it would not
be just and equitable if contribution pursuant to this Section 9(d) were
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to above in this
Section 9(d). The amount paid or payable by an indemnified party as a result of
the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this Section 9(d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. 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 who was not
guilty of such fraudulent misrepresentation.
13
<PAGE>
10. Notices, Etc. All communications hereunder shall be in writing
------------
and if to the Underwriter shall be mailed, telexed, telecopied or delivered to
the Underwriter at the address set forth on Schedule I hereto, or if to the
Company shall be mailed, telexed, telecopied or delivered to it, attention of
Treasurer, Dominion Resources, Inc., 120 Tredegar Street, Richmond, Virginia
23219.
11. Persons Entitled To Benefit Of Agreement. This Agreement shall inure to
----------------------------------------
the benefit of and be binding upon the Underwriter, the Company, and their
respective successors and assigns. This Agreement and the terms and provisions
hereof are for the sole benefit of only those persons, except that (i) the
representations, warranties, indemnities and agreements of the Company contained
in this Agreement shall also be deemed to be for the benefit of the person or
persons, if any, who control the Underwriter within the meaning of Section 15 of
the Securities Act and (ii) the indemnity agreement of the Underwriter contained
in Section 9(b) of this Agreement shall be deemed to be for the benefit of
directors of the Company and officers of the Company who have signed the
Registration Statement and any person controlling the Company within the meaning
of Section 15 of the Securities Act. Nothing in this Agreement is intended or
shall be construed to give any person, other than the persons referred to in
this Section 11, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision contained herein.
12. Governing Law. This Agreement shall be governed by and construed in
--------------
accordance with the laws of New York.
13. Counterparts. This Agreement may be executed in one or more counterparts
------------
and, if executed in more than one counterpart, the executed counterparts shall
each be deemed to be an original but all such counterparts shall together
constitute one and the same instrument.
14. Headings. The headings herein are inserted for convenience of reference
--------
only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
14
<PAGE>
If the foregoing correctly sets forth the agreement between the Company and
the Underwriter, please indicate your acceptance in the space provided for that
purpose below.
Very truly yours,
DOMINION RESOURCES, INC.
By: _______________________
Title:
Accepted:
[UNDERWRITER]
By: _________________________
AUTHORIZED REPRESENTATIVE
15
<PAGE>
Exhibit 4(iii)
DOMINION RESOURCES, INC.,
ISSUER
to
THE CHASE MANHATTAN BANK,
TRUSTEE
---------------
INDENTURE
Dated as of ________ __, ____
---------------
Senior Debt Securities
<PAGE>
Reconciliation and tie between
Trust Indenture Act of 1939 (the "Trust Indenture Act")
and Indenture
Trust Indenture
Act Section Indenture Section
Section 310(a)(1) 607
(a)(2) 607
(b) 608
Section 312(a) 701
(b) 702
(c) 702
Section 313(a) 703
(b)(2) 703
(c) 703
(d) 703
Section 314(a) 704
(c)(1) 102
(c)(2) 102
(e) 102
(f) 102
Section 316(a) (last sentence) 101
(a)(1)(A) 502, 512
(a)(1)(B) 513
(b) 508
Section 317(a)(1) 503
(a)(2) 504
(b) 1003
Section 318(a) 108
- ---------------------------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to
be part of the Indenture.
<PAGE>
TABLE OF CONTENTS
RECITALS..........................................................1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions.......................................1
Section 102. Compliance Certificates and Opinions.............11
Section 103. Form of Documents Delivered to Trustee...........11
Section 104. Acts of Holders; Record Dates....................12
Section 105. Notices, Etc. To Trustee and Company.............15
Section 106. Notice to Holders of Securities; Waiver..........15
Section 107. Language of Notices..............................16
Section 108. Conflict with Trust Indenture Act................16
Section 109. Effect of Headings and Table of Contents.........16
Section 110. Successors and Assigns...........................16
Section 111. Separability Clause..............................17
Section 112. Benefits of Indenture............................17
Section 113. Governing Law....................................17
Section 114. Legal Holidays...................................17
Section 115. Counterparts.....................................17
Section 116. Judgment Currency................................18
ARTICLE TWO
SECURITIES FORMS
Section 201. Forms Generally..................................18
Section 202. Form of Face of Security.........................19
Section 203. Form of Reverse of Security......................20
Section 204. Securities in Global Form........................24
Section 205. Form of Legend for Global Securities.............25
Section 206. Form of Trustee's Certificate of Authentication..25
Section 207. Securities Repayable at the Option of Holders....25
ARTICLE THREE
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series.............26
Section 302. Currency; Denominations..........................30
Section 303. Execution, Authentication, Delivery and Dating...30
Section 304. Temporary Securities.............................33
i
<PAGE>
Section 305. Registration, Transfer and Exchange..............34
Section 306. Mutilated, Destroyed, Lost and Stolen
Securities.......................................37
Section 307. Payment of Interest and Certain Additional
Amounts; Rights to Interest and Certain
Additional Amounts Preserved.....................39
Section 308. Persons Deemed Owners............................40
Section 309. Cancellation.....................................41
Section 310. Computation of Interest..........................41
Section 311. CUSIP, CINS or ISIN Numbers......................41
ARTICLE FOUR
SATISFACTION AND DISCHARGE OF INDENTURE
Section 401. Satisfaction and Discharge.......................42
Section 402. Defeasance and Covenant Defeasance...............43
Section 403. Application of Trust Money.......................47
Section 404. Qualifying Trustee...............................47
Section 405. Reinstatement....................................48
ARTICLE FIVE
REMEDIES
Section 501. Events of Default................................48
Section 502. Acceleration of Maturity; Rescission and
Annulment........................................50
Section 503. Collection of Indebtedness and Suits for
Enforcement by Trustee...........................51
Section 504. Trustee May File Proofs of Claim.................52
Section 505. Trustee may Enforce Claims Without Possession
of Securities or Coupons.........................53
Section 506. Application of Money Collected...................53
Section 507. Limitation on Suits..............................54
Section 508. Unconditional Right of Holders to Receive
Principal and Any Premium, Interest and
Additional Amounts...............................54
Section 509. Restoration of Rights and Remedies...............55
Section 510. Rights and Remedies Cumulative...................55
Section 511. Delay or Omission not Waiver.....................55
Section 512. Control by Holders of Securities.................55
Section 513. Waiver of Past Defaults..........................56
Section 514. Waiver of Stay or Extension Laws.................56
Section 515. Undertaking for Costs............................57
ARTICLE SIX
THE TRUSTEE
ii
<PAGE>
Section 601. Certain Duties and Responsibilities of Trustee...57
Section 602. Certain Rights of Trustee........................57
Section 603. Notice of Defaults...............................58
Section 604. Not Responsible for Recitals or Issuance of
Securities.......................................59
Section 605. May Hold Securities..............................59
Section 606. Money Held in Trust..............................59
Section 607. Compensation and Reimbursement...................59
Section 608. Corporate Trustee Required; Eligibility..........60
Section 609. Resignation and Removal; Appointment of
Successor........................................60
Section 610. Acceptance of Appointment by Successor...........62
Section 611. Merger, Conversion, Consolidation or
Succession to Business...........................63
Section 612. Appointment of Authenticating Agent..............63
Section 613. [Conflicting Interests]..........................65
Section 614. Preferential Collection of Claims Against
Company..........................................66
ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names and Addresses
of Holders.......................................66
Section 702. Preservation of Information; Communications to
Holders..........................................67
Section 703. Reports by Trustee...............................67
Section 704. Reports by Company...............................68
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
Section 801. Company May Consolidate, Etc., Only on Certain
Terms............................................68
Section 802. Successor Person Substituted for Company.........69
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of
Holders..........................................69
Section 902. Supplemental Indentures with Consent of
Holders..........................................71
Section 903. Execution of Supplemental Indentures.............72
Section 904. Effect of Supplemental Indentures................72
Section 905. Reference in Securities to Supplemental
Indentures.......................................72
Section 906. Conformity with Trust Indenture Act..............73
ARTICLE TEN
iii
<PAGE>
COVENANTS
Section 1001. Payment of Principal, Any Premium, Interest
and Additional Amounts...........................73
Section 1002. Maintenance of Office or Agency..................73
Section 1003. Money for Securities Payments to be Held in
Trust............................................74
Section 1004. Additional Amounts...............................76
Section 1005. Corporate Existence..............................76
Section 1006. Company Statement as to Compliance...............77
Section 1007. Calculation of Original Issue Discount...........77
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article.........................77
Section 1102. Election to Redeem; Notice to Trustee............78
Section 1103. Selection by Trustee of Securities to be
Redeemed.........................................78
Section 1104. Notice of Redemption.............................79
Section 1105. Deposit of Redemption Price......................81
Section 1106. Securities Payable on Redemption Date............81
Section 1107. Securities Redeemed in Part......................82
ARTICLE TWELVE
SINKING FUNDS
Section 1201. Applicability of Article.........................82
Section 1202. Satisfaction of Sinking Fund Payments with
Securities.......................................83
Section 1203. Redemption of Securities for Sinking Fund........83
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
Section 1301. Applicability of Article.........................84
Section 1302. Repayment of Securities..........................84
Section 1303. Exercise of Option...............................84
Section 1304. When Securities Presented for Repayment Become
Due and Payable..................................85
Section 1305. Securities Repaid in Part........................85
Section 1306. Compliance with Exchange Act.....................85
ARTICLE FOURTEEN
SECURITIES IN FOREIGN CURRENCIES
Section 1401. Applicability of Article.........................86
iv
<PAGE>
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
Section 1501. Purposes for Which Meetings may be Called........86
Section 1502. Call, Notice and Place of Meetings...............86
Section 1503. Persons Entitled to Vote at Meetings.............87
Section 1504. Quorum; Action...................................87
Section 1505. Determination of Voting Rights; Conduct and
Adjournment of Meetings..........................88
Section 1506. Counting Votes and Recording Action of
Meetings.........................................89
ARTICLE SIXTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,OFFICERS AND DIRECTORS
Section 1601. Indenture and Securities Solely Corporate
Obligations......................................89
v
<PAGE>
INDENTURE, dated as of ________ ___, ____ (the "Indenture"), among DOMINION
RESOURCES, INC., a corporation duly organized and existing under the laws of the
Commonwealth of Virginia (hereinafter called the "Company"), having its
principal executive office located at 120 Tredegar Street, Richmond, Virginia
23219 and The Chase Manhattan Bank, a banking corporation duly organized and
existing under the laws of the State of New York (hereinafter called the
"Trustee"), having its Corporate Trust Office located at 450 West 33rd Street,
New York, New York 10001.
RECITALS
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its senior unsecured
debentures, notes or other evidences of Indebtedness (hereinafter called the
"Securities"), unlimited as to principal amount, to bear such rates of interest,
to mature at such time or times, to be issued in one or more series and to have
such other provisions as shall be fixed as hereinafter provided.
The Company has duly authorized the execution and delivery of this
Indenture. All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
This Indenture is subject to the provisions of the Trust Indenture Act of
1939, as amended, and the rules and regulations of the Securities and Exchange
Commission promulgated thereunder that are required to be part of this Indenture
and, to the extent applicable, shall be governed by such provisions.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders (as herein defined) thereof, it is mutually covenanted and
agreed, for the equal and proportionate benefit of all Holders of the Securities
or of any series thereof and any Coupons (as herein defined) as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions.
Except as otherwise expressly provided in or pursuant to this Indenture or
unless the context otherwise requires, for all purposes of this Indenture:
(1) the terms defined in this Article have the meanings assigned to them in
this Article, and include the plural as well as the singular;
<PAGE>
(2) all other terms used herein which are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to them
therein;
(3) 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 terms "generally accepted accounting principles" or "GAAP" 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;
(4) the words "herein", "hereof", "hereto" 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;
(5) 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
Indenture; and
(6) the word "or" is always used inclusively (for example, the phrase "A or
B" means "A or B or both", not "either A or B but not both").
Certain terms used principally in certain Articles hereof are defined in
those Articles.
"Act", when used with respect to any Holders, has the meaning specified in
Section 104.
"Additional Amounts" means any additional amounts which are required hereby
or by any Security, under circumstances specified herein or therein, to be paid
by the Company in respect of certain taxes, assessments or other governmental
charges imposed on Holders specified therein and which are owing to such
Holders.
"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.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 612 to act on behalf of the Trustee to authenticate Securities of one
or more series.
"Authorized Newspaper" means a newspaper, in an official language of the
place of publication or in the English language, customarily published on each
day that is a Business Day in the place of publication, whether or not published
on days that are Legal Holidays in the place of publication, and of general
circulation in each place in connection with which the term is used or in the
financial community of each such place. Where successive publications are
required to be made in Authorized Newspapers, the successive publications may be
made in the same or in different
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newspapers in the same city meeting the foregoing requirements and in each case
on any day that is a Business Day in the place of publication.
"Bankruptcy Law" has the meaning specified in Section 501.
"Bearer Security" means any Security in the form established pursuant to
Section 201 which is payable to bearer.
"Board of Directors" means the board of directors of the Company or any
committee of that board duly authorized to act generally or in any particular
respect for the Company hereunder.
"Business Day", with respect to any Place of Payment or other location,
means, unless otherwise specified with respect to any Securities pursuant to
Section 301, any day other than a Saturday, Sunday or other day on which banking
institutions in such Place of Payment or other location are authorized or
obligated by law, regulation or executive order to close.
"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. Capital Stock, with respect to the Company,
includes Common Stock and preferred stock.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, as amended,
or, if at any time after the execution of this Indenture such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Common Stock" means common stock, no par value, of the Company.
"Company" means the Person named as the "Company" in the first paragraph of
this instrument until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person.
"Company Request" and "Company Order" mean, respectively, a written request
or order, as the case may be, signed in the name of the Company by any two
Officers or by any Officer and either an Assistant Treasurer or an Assistant
Corporate Secretary of the Company and delivered to the Trustee.
"Company Resolution" 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
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"Conversion Event" means the cessation of use of (i) a Foreign Currency
both by the government of the country or the confederation which issued such
Foreign Currency and for the settlement of transactions by a central bank or
other public institutions of or within the international banking community, (ii)
the Euro both within the European Monetary System and for the settlement of
transactions by public institutions of or within the European Union or (iii) any
currency unit or composite currency other than the Euro for the purposes for
which it was established.
" Corporate Trust Office" means the office of the Trustee at which at any
particular time its corporate trust business shall be principally administered,
which office at the date of original execution of this Indenture is located at
450 West 33rd Street, New York, New York 10001.
"Corporation" and "corporation" includes corporations, associations,
companies and business trusts.
"Coupon" means any interest coupon appertaining to a Bearer Security.
"Currency", with respect to any payment, deposit or other transfer in
respect of the principal of or any premium or interest on or any Additional
Amounts with respect to any Security, means Dollars or the Foreign Currency, as
the case may be, in which such payment, deposit or other transfer is required to
be made by or pursuant to the terms hereof or such Security and, with respect to
any other payment, deposit or transfer pursuant to or contemplated by the terms
hereof or such Security, means Dollars.
"CUSIP Number" means the alphanumeric designation assigned to a Security by
Standard & Poor's Corporation, CUSIP Service Bureau.
"Defaulted Interest" has the meaning specified in Section 307.
"Dollars" or "$" means a dollar or other equivalent unit of legal tender
for payment of public or private debts in the United States of America.
"Euro" means the currency introduced at the third stage of the European
Economic Monetary Union, pursuant to the Treaty establishing the European
Community, as amended by the Treaty on European Union.
"European Monetary System" means the European Monetary System established
by the Resolution of ________ 5, 1978 of the Council of the European Community.
"European Union" means the European Community, the European Coal and Steel
Community and the European Atomic Energy Community.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934 and any statute
successor thereto, in each case as amended from time to time.
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"Expiration Date" has the meaning specified in Section 104.
"Foreign Currency" means any currency, currency unit or composite currency,
including, without limitation, the Euro, issued by the government of one or more
countries other than the United States of America or by any recognized
confederation or association of such governments.
"Global Security"means a Security that evidences all or part of the
Securities of any series that is issued to a Depositary or a nominee thereof for
such series in accordance with Section 301(4).
"Government Obligations" means securities which are (i) direct obligations
of the United States of America or the other government or governments in the
confederation which issued the Foreign Currency in which the principal of or any
premium or interest on such Security or any Additional Amounts in respect
thereof shall be payable, in each case where the payment or payments thereunder
are supported by the full faith and credit of such government or governments or
(ii) obligations of a Person controlled or supervised by and acting as an agency
or instrumentality of the United States of America or such other government or
governments, in each case where the timely payment or payments thereunder are
unconditionally guaranteed as a full faith and credit obligation by the United
States of America or such other government or governments, and which, in the
case of (i) or (ii), are not callable or redeemable at the option of the issuer
or issuers thereof, and shall also include a depository receipt issued by a bank
or trust company as custodian with respect to any such Government Obligation or
a specific payment of interest on or principal of or other amount with respect
to any such Government Obligation held by such custodian for the account of the
holder of a depository receipt, provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the custodian in
respect of the Government Obligation or the specific payment of interest on or
principal of or other amount with respect to the Government Obligation evidenced
by such depository receipt.
"Holder", in the case of any Registered Security, means the Person in whose
name such Security is registered in the Security Register and, in the case of
any Bearer Security, means the bearer thereof and, in the case of any Coupon,
means the bearer thereof.
"Indebtedness" means (a) any liability of the Company (1) for borrowed
money, or under any reimbursement obligation relating to a letter of credit, or
(2) evidenced by a bond, note, debenture or similar instrument, or (3) for
payment obligations arising under any conditional sale or other title retention
arrangement (including a purchase money obligation) given in connection with the
acquisition of any businesses, properties or assets of any kind, or (4) for the
payment of money relating to a capitalized lease obligation; (b) any liability
of others described in the preceding clause (a) that the Company has guaranteed
or that is otherwise its legal liability; and (c) any amendment, supplement,
modification, deferral, renewal, extension or refunding of any liability of the
types referred to in clauses (a) and (b) above.
"Indenture" means this instrument as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof and shall include the terms
and provisions of any Security and any Coupon appertaining
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thereto established pursuant to Section 301 (as such terms and provisions may be
amended pursuant to the applicable provisions hereof) including, for all
purposes of this instrument and any such supplemental indenture, the provisions
of the Trust Indenture Act that are deemed to be a part of and govern this
instrument and any such supplemental indenture, respectively.
"independent public accountants" means accountants or a firm of accountants
that, with respect to the Company and any other obligor under the Securities or
the Coupons, are independent public accountants within the meaning of the
Securities Act of 1933, as amended, and the rules and regulations promulgated by
the Commission thereunder, who may be the independent public accountants
regularly retained by the Company or who may be other independent public
accountants. Such accountants or firm shall be entitled to rely upon any Opinion
of Counsel as to the interpretation of any legal matters relating to this
Indenture or certificates required to be provided hereunder.
"Indexed Security" means a Security the terms of which provide that the
principal amount thereof payable at Stated Maturity may be more or less than the
principal face amount thereof at original issuance.
"Interest", with respect to any Original Issue Discount Security which by
its terms bears interest only after Maturity, means interest payable after
Maturity and, when used with respect to a Security which provides for the
payment of Additional Amounts pursuant to Section 1004, includes such Additional
Amounts.
"Interest Payment Date", with respect to any Security, means the Stated
Maturity of an installment of interest on such Security.
"Judgment Currency" has the meaning specified in Section 116.
"Legal Holidays" has the meaning specified in Section 114.
"Maturity", with respect to any Security, means the date on which the
principal of such Security or an installment of principal becomes due and
payable as provided in or pursuant to this Indenture, whether at the Stated
Maturity or by declaration of acceleration, notice of redemption or repurchase,
notice of option to elect repayment or otherwise, and includes a Redemption Date
or Repayment Date.
"New York Banking Day" has the meaning specified in Section 116.
"Office" or "Agency", with respect to any Securities, means an office or
agency of the Company maintained or designated in a Place of Payment for such
Securities pursuant to Section 1002 or any other office or agency of the Company
maintained or designated for such Securities pursuant to Section 1002 or, to the
extent designated or required by Section 1002 in lieu of such office or agency,
the Corporate Trust Office of the Trustee.
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"Officer" means the Chairman of the Board, the President, any Vice
President (whether or not designated by a number or word added before or after
the title vice president), the Treasurer, the Corporate Secretary or the
Controller of the Company.
"Officers' Certificate" means a certificate signed by two Officers or by
any Officer and either an Assistant Treasurer or an Assistant Corporate
Secretary of the Company, that, if required by the Trust Indenture Act, complies
with the requirements of Section 314(e) of the Trust Indenture Act and is
delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of or counsel for the Company or other counsel who shall be reasonably
acceptable to the Trustee, that, if required by the Trust Indenture Act,
complies with the requirements of Section 314(e) of the Trust Indenture Act.
"Original Issue Discount Security" means a Security issued pursuant to this
Indenture which provides for declaration of an amount less than the principal
face amount thereof to be due and payable upon acceleration pursuant to Section
502.
"Outstanding", when used with respect to any Securities, means, as of the
date of determination, all such Securities theretofore authenticated and
delivered under this Indenture, except:
(a) any such Security theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(b) any such Security for whose payment at the Maturity thereof money
in the necessary amount has been theretofore deposited pursuant
hereto (other than pursuant to Section 402) with the Trustee or
any Paying Agent (other than the Company) in trust or set aside
and segregated in trust by the Company (if the Company shall act
as its own Paying Agent) for the Holders of such Securities and
any Coupons appertaining thereto, provided that, if such
Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefore
satisfactory to the Trustee has been made;
(c) any such Security with respect to which the Company has effected
defeasance or covenant defeasance pursuant to Section 402, except
to the extent provided in Section 402;
(d) any such Security which has been paid pursuant to Section 306 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, unless
there shall have been presented to the Trustee proof satisfactory
to it that such Security is held by a bona fide purchaser in
whose hands such Security is a valid obligation of the Company;
and
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(e) any such Security converted or exchanged as contemplated by this
Indenture into Capital Stock or other securities, if the terms of
such Security provide for such conversion or exchange pursuant to
Section 301;
provided, however, that 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 or are present at
a meeting of Holders of Securities for quorum purposes, (i) the principal amount
of an Original Issue Discount Security that may be counted in making such
determination and that shall be deemed to be Outstanding for such purposes shall
be equal to the amount of the principal thereof that pursuant to the terms of
such Original Issue Discount Security would be declared (or shall have been
declared to be) due and payable upon a declaration of acceleration thereof
pursuant to Section 502 at the time of such determination, and (ii) the
principal amount of any Indexed Security that may be counted in making such
determination and that shall be deemed outstanding for such purpose shall be
equal to the principal face amount of such Indexed Security at original
issuance, unless otherwise provided in or pursuant to this Indenture, and (iii)
the principal amount of a Security denominated in a Foreign Currency shall be
the Dollar equivalent, determined on the date of original issuance of such
Security, of the principal amount (or, in the case of an Original Issue Discount
Security, the Dollar equivalent on the date of original issuance of such
Security of the amount determined as provided in (i) above) of such Security,
and (iv) Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in making any such determination or
relying upon any such request, demand, authorization, direction, notice, consent
or waiver, only Securities which a Responsible Officer of the Trustee knows to
be so owned shall be so disregarded. Securities so owned which shall have been
pledged in good faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Trustee (A) the pledgee's right so to act with
respect to such Securities and (B) that the pledgee is not the Company or any
other obligor upon the Securities or an Affiliate of the Company or such other
obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of, or any premium or interest on, or any Additional Amounts with
respect to, any Security or any Coupon on behalf of the Company.
"Periodic Offering" means an offering of Securities of a series from time
to time the specific terms of which Securities, including without limitation the
rate or rates of interest or formula for determining the rate or rates of
interest thereon, if any, the Stated Maturity or Maturities thereof and the
redemption provisions, if any, with respect thereto, are to be determined by the
Company upon the issuance of such Securities.
"Person" means any individual, Corporation, partnership, joint venture,
joint-stock company, limited liability company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
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"Place of Payment", with respect to any Security, means the place or places
where the principal of, or any premium or interest on, or any Additional Amounts
with respect to such Security are payable as provided in or pursuant to this
Indenture or such Security.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same indebtedness as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in exchange for or in
lieu of a lost, destroyed, mutilated or stolen Security or any Security to which
a mutilated, destroyed, lost or stolen Coupon appertains shall be deemed to
evidence the same indebtedness as the lost, destroyed, mutilated or stolen
Security or the Security to which a mutilated, destroyed, lost or stolen Coupon
appertains.
"Redemption Date", with respect to any Security or portion thereof to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture or such Security.
"Redemption Price", with respect to any Security or portion thereof to be
redeemed, means the price at which it is to be redeemed as determined by or
pursuant to this Indenture or such Security.
"Registered Security" means any Security in the form established pursuant
to Section 201 which is registered in the Security Register.
"Regular Record Date" for the interest payable on any Registered Security
on any Interest Payment Date therefor means the date, if any, specified in or
pursuant to this Indenture or such Security as the "Regular Record Date".
"Repayment Date" shall mean, when used with respect to any Security to be
repaid at the option of the Holder, the date fixed for such repayment by or
pursuant to such Security.
"Repayment Price" shall mean, when used with respect to any Security to be
repaid at the option of the Holder, the price at which it is to be repaid
pursuant to this Indenture.
"Required Currency" has the meaning specified in Section 116.
"Responsible Officer" means any officer of the Trustee in its Corporate
Trust Office and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"Security" or "Securities" means any note or notes, bond or bonds,
debenture or debentures, or any other evidences of indebtedness, as the case may
be, authenticated and delivered under this Indenture; provided, however, that,
if at any time there is more than one Person acting as Trustee under this
Indenture, "Securities", with respect to any such Person, shall mean Securities
authenticated and delivered under this Indenture, exclusive, however, of
Securities of any series as to which such Person is not Trustee.
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"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest on any
Registered Security means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", with respect to any Security or any installment of
principal thereof or interest thereon or any Additional Amounts with respect
thereto, means the date established by or pursuant to this Indenture or such
Security as the fixed date on which the principal of such Security or such
installment of principal or interest is, or such Additional Amounts are, due and
payable.
"Subsidiary" means a corporation a majority of the outstanding Voting Stock
of which is owned, directly or indirectly, by the Company or one or more
Subsidiaries, or by the Company and one or more Subsidiaries.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended,
and any reference herein to the Trust Indenture Act or a particular provision
thereof shall mean such Act or provision, as the case may be, as amended or
replaced from time to time or as supplemented from time to time by rules or
regulations adopted by the Commission under or in furtherance of the purposes of
such Act or provision, as the case may be.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this instrument until a successor Trustee shall have become such with respect to
one or more series of Securities pursuant to the applicable provisions of this
Indenture, and thereafter "Trustee" shall mean each Person who is then a Trustee
hereunder; provided, however, that if at any time there is more than one such
Person, "Trustee" shall mean each such Person and as used with respect to the
Securities of any series shall mean the Trustee with respect to the Securities
of such series.
"United States", except as otherwise provided in or pursuant to this
Indenture or any Security, means the United States of America (including the
states thereof and the District of Columbia), its territories and possessions
and other areas subject to its jurisdiction.
"United States Alien", except as otherwise provided in or pursuant to this
Indenture or any Security, means any Person who, for United States Federal
income tax purposes, is a foreign corporation, a non-resident alien individual,
a non-resident alien fiduciary of a foreign estate or trust, or a foreign
partnership one or more of the members of which is, for United States Federal
income tax purposes, a foreign corporation, a non-resident alien individual or a
non-resident alien fiduciary of a foreign estate or trust.
"U.S. Depositary" or "Depositary" means, with respect to any Security
issuable or issued in the form of one or more Global Securities, the Person
designated as U.S. Depositary or Depositary by the Company in or pursuant to
this Indenture, which Person must be, to the extent required by applicable law
or regulation, a clearing agency registered under the Exchange Act, and, if so
provided with respect to any Security, any successor to such Person. If at any
time there is more than
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one such Person, "U.S. Depositary" or "Depositary" shall mean, with respect to
any Securities, the qualifying entity which has been appointed with respect to
such Securities.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "Vice President".
"Voting Stock" means stock having 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.
Section 102. Compliance Certificates and Opinions.
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 or as may be required under the Trust Indenture
Act, 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.
Section 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon an Opinion of Counsel, unless such
officer knows, or in the exercise of reasonable care should know, that the
opinion with respect to the matters upon which his certificate or opinion is
based are erroneous. Any such Opinion of Counsel may be based, insofar as it
relates to factual matters, upon a certificate or opinion of, or representations
by, an officer or officers of the Company stating that the information with
respect to such factual matters is in the possession of the Company unless such
counsel knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture or any Security, they may, but need not, be
consolidated and form one instrument.
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Whenever, subsequent to the receipt by the Trustee of any Company
Resolution, Officers' Certificate, Opinion of Counsel or other document or
instrument, a clerical, typographical or other inadvertent or unintentional
error or omission shall be discovered therein, a new document or instrument may
be substituted therefor in corrected form with the same force and effect as if
originally filed in the corrected form and, irrespective of the date or dates of
the actual execution and/or delivery thereof, such substitute document or
instrument shall be deemed to have been executed and/or delivered as of the date
or dates required with respect to the document or instrument for which it is
substituted. Anything in this Indenture to the contrary notwithstanding, if any
such corrective document or instrument indicates that action has been taken by
or at the request of the Company that could not have been taken had the original
document or instrument not contained such error or omission, the action so taken
shall not be invalidated or otherwise rendered ineffective but shall be and
remain in full force and effect, except to the extent that such action was a
result of willful misconduct or bad faith. Without limiting the generality of
the foregoing, any Securities issued under the authority of such defective
document or instrument shall nevertheless be the valid obligations of the
Company entitled to the benefits of this Indenture equally and ratably with all
other Outstanding Securities, except as aforesaid.
Section 104. Acts of Holders; Record Dates.
(1) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by or pursuant to this Indenture to be given or
taken by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing. Any request, demand, authorization, direction, notice,
consent, waiver or other action provided in or pursuant to this Indenture to be
given or taken by Holders of Securities of such series may, alternatively, be
embodied in and evidenced by the record of Holders of Securities of such series
voting in favor thereof, either in person or by proxies duly appointed in
writing, at any meeting of Holders of Securities of such series duly called and
held in accordance with the provisions of Article Fifteen or a combination of
such instruments and any such record. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
or record or both are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments and any such record
(and the action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders signing such instrument or instruments
or so voting at any such meeting. Proof of execution of any such instrument or
of a writing appointing any such agent, or of the holding by any Person of a
Security, shall be sufficient for any purpose of this Indenture and (subject to
Section 315 of the Trust Indenture Act) conclusive in favor of the Trustee and
the Company and any agent of the Trustee or the Company, if made in the manner
provided in this Section. The record of any meeting of Holders of Securities
shall be proved in the manner provided in Section 1506.
Without limiting the generality of this Section 104, unless otherwise
provided in or pursuant to this Indenture, a Holder, including a U.S. Depositary
that is a Holder of a Global Security, may make, give or take, by a proxy, or
proxies, duly appointed in writing, any request, demand, authorization,
direction, notice, consent, waiver or other Act provided in or pursuant to this
Indenture or the Securities to be made, given or taken by Holders, and a U.S.
Depositary that is a Holder of a Global Security may provide its proxy or
proxies to the direct or indirect participants therein or the
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beneficial owners of interests in any such Global Security through such U.S.
Depositary's standing instructions and customary practices.
(2) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any reasonable manner which the Trustee
deems sufficient and in accordance with such reasonable rules as the Trustee may
determine; and the Trustee may in any instance require further proof with
respect to any of the matters referred to in this Section.
(3) The ownership, principal amount and serial numbers of Registered
Securities held by any Person, and the date of the commencement and the date of
the termination of holding the same, shall be proved by the Security Register.
(4) The ownership, principal amount and serial numbers of Bearer
Securities held by any Person, and the date of the commencement and the date of
the termination of holding the same, may be proved by the production of such
Bearer Securities or by a certificate executed, as depositary, by any trust
company, bank, banker or other depositary reasonably acceptable to the Company,
wherever situated, if such certificate shall be deemed by the Company and the
Trustee to be satisfactory, showing that at the date therein mentioned such
Person had on deposit with such depositary, or exhibited to it, the Bearer
Securities therein described; or such facts may be proved by the certificate or
affidavit of the Person holding such Bearer Securities, if such certificate or
affidavit is deemed by the Company and the Trustee to be satisfactory. The
Trustee and the Company may assume that such ownership of any Bearer Security
continues until (A) another certificate or affidavit bearing a later date issued
in respect of the same Bearer Security is produced, or (B) such Bearer Security
is produced to the Trustee by some other Person, or (C) such Bearer Security is
surrendered in exchange for a Registered Security, or (D) such Bearer Security
is no longer Outstanding. The ownership, principal amount and serial numbers of
Bearer Securities held by the Person so executing such instrument or writing and
the date of the commencement and the date of the termination of holding the same
may also be proved in any other manner which the Company and the Trustee deem
sufficient.
(5) Any request, demand, authorization, direction, notice, consent,
waiver or other Act by the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done or suffered to be done by the Trustee, any Security
Registrar, any Paying Agent or the Company in reliance thereon, whether or not
notation of such Act is made upon such Security.
The Company may set any day as a record date for the purpose of determining
the Holders of Outstanding Registered Securities of any series entitled to give,
make or take any request, demand, authorization, direction, notice, consent,
waiver or other action provided or permitted by this Indenture to be given, made
or taken by Holders of Securities of such series; provided that the Company may
not set a record date for, and the provisions of this paragraph shall not apply
with respect to, the giving or making of any notice, declaration, request or
direction referred to in the next paragraph. If any record date is set pursuant
to this paragraph, the Holders of Outstanding Registered Securities of the
relevant series on such record date, and no other Holders, shall be entitled to
take
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or revoke the relevant action, whether or not such Holders remain Holders after
such record date; provided that no such action shall be effective hereunder
unless taken on or prior to the applicable Expiration Date by Holders of the
requisite principal amount of Outstanding Securities of such series on such
record date. Nothing in this paragraph shall be construed to prevent the Company
from setting a new record date for any action for which a record date has
previously been set pursuant to this paragraph (whereupon the record date
previously set shall automatically and with no action by any Person be canceled
and of no effect), and nothing in this paragraph shall be construed to render
ineffective any action taken by Holders of the requisite principal amount of
Outstanding Securities of the relevant series on the date such action is taken.
Promptly after any record date is set pursuant to this paragraph, the Company,
at its own expense, shall cause notice of such record date, the proposed action
by Holders and the applicable Expiration Date to be given to the Trustee in
writing and to each Holder of Securities of the relevant series in the manner
set forth in Section 106.
The Trustee may set any day as a record date for the purpose of determining
the Holders of Outstanding Registered Securities of any series entitled to join
in the giving or making of (i) any Notice of Default, (ii) any declaration of
acceleration referred to in Section 502, (iii) any request to institute
proceedings referred to in Section 507(2) or (4) any direction referred to in
Section 512, in each case with respect to Securities of such series. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Registered Securities of such series on such record date, and no other Holders,
shall be entitled to join in such notice, declaration, request or direction or
to revoke the same, whether or not such Holders remain Holders after such record
date; provided that no such action shall be effective hereunder unless taken on
or prior to the applicable Expiration Date by Holders of the requisite principal
amount of Outstanding Securities of such series on such record date. Nothing in
this paragraph shall be construed to prevent the Trustee from setting a new
record date for any action for which a record date has previously been set
pursuant to this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be canceled and of no effect),
and nothing in this paragraph shall be construed to render ineffective any
action taken by Holders of the requisite principal amount of Outstanding
Securities of the relevant series on the date such action is taken. Promptly
after any record date is set pursuant to this paragraph, the Trustee, at the
Company's expense, shall cause notice of such record date, the proposed action
by Holders and the applicable Expiration Date to be sent to the Company in
writing and to each Holder of Securities of the relevant series in the manner
set forth in Section 106.
With respect to any record date set pursuant to this Section, the party
hereto that sets such record dates may designate any day as the "Expiration
Date" and from time to time may change the Expiration Date to any earlier or
later day; provided that no such change shall be effective unless notice of the
proposed new Expiration Date is given to the other party hereto in writing, and
to each Holder of Registered Securities of the relevant series in the manner set
forth in Section 106, on or prior to the existing Expiration Date. If an
Expiration Date is not designated with respect to any record date set pursuant
to this Section, the party hereto that sets such record date shall be deemed to
have initially designated the 180th day after such record date as the Expiration
Date with respect thereto, subject to its right to change the Expiration Date as
provided in this paragraph. Notwithstanding the foregoing, no Expiration Date
shall be later than the 180th day after the applicable record date.
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Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Security may do so with regard to
all or any part of the principal amount of such 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 principal amount.
Section 105. Notices, Etc. To Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or
other Act of Holders or other document provided or permitted by this Indenture
to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or the Company shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing to or
with the Trustee at its Corporate Trust Office, Attention: Capital Markets
Fiduciary Services, or
(2) the Company by the Trustee or any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to the Company addressed
to the attention of its Treasurer at the address of its principal office
specified in the first paragraph of this instrument or at any other address
previously furnished in writing to the Trustee by the Company.
Section 106. Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided in or pursuant to this Indenture,
where this Indenture provides for notice to Holders of Securities of any event,
(1) such notice shall be sufficiently given to Holders of Registered
Securities if in writing and mailed, first-class postage prepaid, to each
Holder of a Registered Security affected by such event, at his address as
it appears in the Security Register, not later than the latest date, and
not earlier than the earliest date, prescribed for the giving of such
notice; and
(2) such notice shall be sufficiently given to Holders of Bearer
Securities, if any, if published in an Authorized Newspaper in The City of
New York and, if such Securities are then listed on any stock exchange
outside the United States, in an Authorized Newspaper in such city as the
Company shall advise the Trustee that such stock exchange so requires, on a
Business Day at least twice, the first such publication to be not earlier
than the earliest date and the second such publication not later than the
latest date prescribed for the giving of such notice.
In any case where notice to Holders of Registered Securities is given by
mail, neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder of a Registered Security shall affect the
sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice to Holders of Bearer Securities
given as provided herein. Any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given or provided. In
the case by reason of the suspension of regular
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mail service or by reason of any other cause it shall be impracticable to give
such notice by mail, then such notification as shall be made with the approval
of the Trustee shall constitute a sufficient notification for every purpose
hereunder.
In case by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of any notice mailed to
Holders of Registered Securities as provided above.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders of Securities shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
Section 107. Language of Notices.
Any request, demand, authorization, direction, notice, consent, election or
waiver required or permitted under this Indenture shall be in the English
language, except that, if the Company so elects, any published notice may be in
an official language of the country of publication.
Section 108. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with any duties
under any required provision of the Trust Indenture Act imposed hereon by
Section 318(c) thereof, such required provision shall control. If any provision
of this Indenture modifies or excludes any provision of the Trust Indenture Act
which may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may be.
Section 109. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 110. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
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Section 111. Separability Clause.
In case any provision in this Indenture, any Security or any Coupon 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.
Section 112. Benefits of Indenture.
Nothing in this Indenture, any Security or any Coupon, express or implied,
shall give to any Person, other than the parties hereto, any Security Registrar,
any Paying Agent and their successors hereunder and the Holders of Securities or
Coupons, any benefit or any legal or equitable right, remedy or claim under this
Indenture.
Section 113. Governing Law.
This Indenture, the Securities and any Coupons shall be governed by and
construed in accordance with the laws of the State of New York applicable to
agreements made or instruments entered into and, in each case, performed in said
State, without regard to conflicts of laws principles thereof.
Section 114. Legal Holidays.
Unless otherwise specified in or pursuant to this Indenture or any
Securities, in any case where any Interest Payment Date, Redemption Date,
Repayment Date, Stated Maturity or Maturity of any Security shall be a Legal
Holiday at any Place of Payment, then (notwithstanding any other provision of
this Indenture, any Security or any Coupon other than a provision in any
Security or Coupon that specifically states that such provision shall apply in
lieu hereof) payment need not be made at such Place of Payment on such date, but
such payment may be made on the next succeeding day that is a Business Day at
such Place of Payment with the same force and effect as if made on the Interest
Payment Date, Redemption Date, Repayment Date or at the Stated Maturity or
Maturity, and no interest shall accrue on the amount payable on such date or at
such time for the period from and after such Interest Payment Date, Redemption
Date, Repayment Date, Stated Maturity, Maturity, as the case may be, to the next
succeeding Business Day.
Section 115. Counterparts.
This Indenture may be executed in several counterparts, each of which shall
be an original and all of which shall constitute but one and the same
instrument.
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Section 116. Judgment Currency.
The Company agrees, to the fullest extent that it may effectively do so
under applicable law, that (a) if for the purpose of obtaining judgment in any
court it is necessary to convert the sum due in respect of the principal of, or
premium or interest, if any, or Additional Amounts on the Securities of any
series (the "Required Currency") into a currency in which a judgment will be
rendered (the "Judgment Currency"), the rate of exchange used shall be the rate
at which in accordance with normal banking procedures the Trustee could purchase
in The City of New York the Required Currency with the Judgment Currency on the
New York Banking Day preceding that on which a final unappealable judgment is
given and (b) its obligations under this Indenture to make payments in the
Required Currency (i) shall not be discharged or satisfied by any tender, or any
recovery pursuant to any judgment (whether or not entered in accordance with
clause (a)), in any currency other than the Required Currency, except to the
extent that such tender or recovery shall result in the actual receipt, by the
payee, of the full amount of the Required Currency expressed to be payable in
respect of such payments, (ii) shall be enforceable as an alternative or
additional cause of action for the purpose of recovering in the Required
Currency the amount, if any, by which such actual receipt shall fall short of
the full amount of the Required Currency so expressed to be payable and (iii)
shall not be affected by judgment being obtained for any other sum due under
this Indenture. For purposes of the foregoing, "New York Banking Day" means any
day except a Saturday, Sunday or a legal holiday in The City of New York or a
day on which banking institutions in The City of New York are authorized or
obligated by law, regulation or executive order to be closed.
ARTICLE TWO
SECURITIES FORMS
Section 201. Forms Generally.
Each Registered Security, Bearer Security, Coupon and temporary or
permanent Global Security issued pursuant to this Indenture shall be in the form
set forth in this Article (with respect to Registered Securities) or in such
other form as shall be established by or pursuant to a Company Resolution or in
one or more indentures supplemental hereto, shall have such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by or pursuant to this Indenture or any indenture supplemental hereto
and may have such letters, numbers or other marks of identification and such
legends or endorsements placed thereon as may, consistently herewith, be
determined by the officers executing such Security or Coupon as evidenced by
their execution of such Security or Coupon.
Unless otherwise provided in or pursuant to this Indenture or any
Securities, the Securities shall be issuable in registered form without Coupons.
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Definitive Securities and definitive Coupons shall be printed, lithographed
or engraved or produced by any combination of these methods on a steel engraved
border or steel engraved borders or may be produced in any other manner, all as
determined by the officers of the Company executing such Securities or Coupons,
as evidenced by their execution of such Securities or Coupons.
Section 202. Form of Face of Security.
[Insert any legend required by the Internal Revenue Code and the
regulations thereunder.]
DOMINION RESOURCES, INC.
-----------------------
No. __________ $ __________
CUSIP No. ____
Dominion Resources, Inc., a corporation duly organized and existing under
the laws of Virginia (herein called the "Company", which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to ______________________, or registered
assigns, the principal sum of ________ Dollars on _________________________ [if
the Security is to bear interest prior to Maturity, insert - , and to pay
interest thereon from __________ or from the most recent Interest Payment Date
to which interest has been paid or duly provided for, [insert - semi-annually,
quarterly, monthly or other description of the relevant payment period] on
[________, ________,] and __________ in each year, commencing _______________,
at the rate of ____% per annum, until the principal hereof is paid or made
available for payment [if applicable, insert - , provided that any principal and
premium, and any such instalment of interest, that is overdue shall bear
interest at the rate of ___% per annum (to the extent that the payment of such
interest shall be legally enforceable), from the dates such amounts are due
until they are paid or made available for payment, and such interest shall be
payable on demand]. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in such Indenture,
be paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest, which shall be the [___________________] (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date.
Any such interest not so punctually paid or duly provided for will forthwith
cease to be payable to the Holder on such Regular Record Date and may either be
paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Securities of this series not less than 10
days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities of this series may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert - The
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal and any overdue premium
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shall bear interest at the rate of ____% per annum (to the extent that the
payment of such interest shall be legally enforceable), from the dates such
amounts are due until they are paid or made available for payment. Interest on
any overdue principal or premium shall be payable on demand. Any such interest
on overdue principal or premium which is not paid on demand shall bear interest
at the rate of ____% per annum (to the extent that the payment of such interest
on interest shall be legally enforceable), from the date of such demand until
the amount so demanded is paid or made available for payment. Interest on any
overdue interest shall be payable on demand.]
Payment of the principal of (and premium, if any) and [if applicable,
insert - any such] interest on this Security will be made at the office or
agency of the Company maintained for that purpose in _________________, in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts [if applicable, insert -;
provided, however, that at the option of the Company payment of interest may be
made by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register].
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
DOMINION RESOURCES, INC.
By_______________________________________
Attest:
______________________________
Section 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of ______, ____ (herein called the
"Indenture", which term shall have the meaning assigned to it in such
instrument), between the Company and The Chase Manhattan Bank, as Trustee
(herein called the "Trustee", which term includes any successor trustee under
the Indenture), and reference is hereby made to the Indenture for a statement of
the respective rights, limitations of rights, duties and
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immunities thereunder of the Company, the Trustee and the Holders of the
Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof [if applicable, insert - , limited in aggregate principal amount
to $__________].
[If applicable, insert - The Securities of this series are subject to
redemption upon not less than 30 days notice by mail, [if applicable, insert -
(1) on ____________ in any year commencing with the year _____ and ending with
the year _____ through operation of the sinking fund for this series at a
Redemption Price equal to 100% of the principal amount, and (2)] at any time [if
applicable, insert - on or after ___________, 19__], as a whole or in part, at
the election of the Company, at the following Redemption Prices (expressed as
percentages of the principal amount): If redeemed [if applicable, insert - on or
before _________________, ___%, and if redeemed] during the 12-month period
beginning _________ of the years indicated,
Year Redemption Price Year Redemption Price
- ---- ---------------- ---- ----------------
and thereafter at a Redemption Price equal to ____% of the principal amount,
together in the case of any such redemption [if applicable, insert - (whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[If applicable, insert - The Securities of this series are subject to
redemption upon not less than 30 days notice by mail, (1) on ____________ in any
year commencing with the year ______ and ending with the year _____ through
operation of the sinking fund for this series at the Redemption Prices for
redemption through operation of the sinking fund (expressed as percentages of
the principal amount) set forth in the table below, and (2) at any time [if
applicable, insert - on or after _____________], as a whole or in part, at the
election of the Company, at the Redemption Prices for redemption otherwise than
through operation of the sinking fund (expressed as percentages of the principal
amount) set forth in the table below: If redeemed during the 12-month period
beginning ________ of the years indicated,
Redemption Price for Redemption Price for
-------------------- --------------------
Redemption Through Redemption Otherwise Than
------------------ -------------------------
Operation of the Through Operation
---------------- -----------------
Year Sinking Fund of the Sinking Fund
- ---- ------------ -------------------
and thereafter at a Redemption Price equal to _____% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to
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such Redemption Date will be payable to the Holders of such Securities, or one
or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[If applicable, insert - Notwithstanding the foregoing, the Company may
not, prior to _________, redeem any Securities of this series as contemplated by
[if applicable, insert - Clause (2) of] the preceding paragraph as a part of, or
in anticipation of, any refunding operation by the application, directly or
indirectly, of moneys borrowed having an interest cost to the Company
(calculated in accordance with generally accepted financial practice) of less
than ____% per annum.]
[If applicable, insert - The sinking fund for this series provides for the
redemption on __________ in each year beginning with the year _______ and ending
with the year ______ of [if applicable, insert - not less than $___________
("mandatory sinking fund") and not more than] $____________ aggregate principal
amount of Securities of this series. Securities of this series acquired or
redeemed by the Company otherwise than through [if applicable, insert -
mandatory] sinking fund payments may be credited against subsequent [if
applicable, insert -mandatory] sinking fund payments otherwise required to be
made [if applicable, insert - , in the inverse order in which they become due].]
[If the Security is subject to redemption of any kind, insert - - In the
event of redemption of this Security in part only, a new Security or Securities
of this series and of like tenor for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.]
[If applicable, insert - The Securities of this series are not redeemable
prior to Stated Maturity.]
[If applicable, insert - The Indenture contains provisions for defeasance
at any time of [the entire indebtedness of this Security] [or] [certain
restrictive covenants and Events of Default with respect to this Security] [, in
each case] upon compliance with certain conditions set forth in the Indenture.]
[If the Security is not an Original Issue Discount Security, insert - If an
Event of Default with respect to Securities of this series shall occur and be
continuing, the principal of the Securities of this series may be declared due
and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert - If an
Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to [insert formula for determining the
amount]. Upon payment (i) of the amount of principal so declared due and
payable and (ii) of interest on any overdue principal, premium and interest (in
each case to the extent that the payment of such interest shall be legally
enforceable), all of the Company's obligations in respect of the payment of the
principal of and premium and interest, if any, on the Securities of this series
shall terminate.]
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The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive certain past defaults under
the Indenture and their consequences. Any such consent or waiver by the Holder
of this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange therefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder
of this Security shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than a majority in principal
amount of the Securities of this series at the time Outstanding shall have made
written request to the Trustee to institute proceedings in respect of such Event
of Default as Trustee and offered the Trustee reasonable indemnity, and the
Trustee shall not have received from the Holders of a majority in principal
amount of Securities of this series at the time Outstanding a direction
inconsistent with such request, and shall have failed to institute any such
proceeding for 60 days after receipt of such notice, request and offer of
indemnity. The foregoing shall not apply to any suit instituted by the Holder
of this Security for the enforcement of any payment of principal hereof or any
premium or interest hereon on or after the respective due dates expressed or
provided for herein.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and any premium and interest
on this Security at the times, place and rate, and in the coin or currency,
herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company in any place where the principal of and any premium and
interest on this Security are payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities of this series
and of like tenor, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series having the same Stated Maturity and of like tenor
of any
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authorized denominations as requested by the Holder upon surrender of the Note
or Notes to be exchanged at the office or agency of the Company.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Security that are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
Section 204. Securities in Global Form.
Unless otherwise provided in or pursuant to this Indenture or any
Securities, the Securities shall not be issuable in global form. If Securities
of a series shall be issuable in temporary or permanent global form, any such
Security may provide that it or any number of such Securities shall represent
the aggregate amount of all Outstanding Securities of such series (or such
lesser amount as is permitted by the terms thereof) from time to time endorsed
thereon and may also provide that the aggregate amount of Outstanding Securities
represented thereby may from time to time be increased or reduced to reflect
exchanges. Any endorsement of any Security in global form to reflect the
amount, or any increase or decrease in the amount, or changes in the rights of
Holders, of Outstanding Securities represented thereby shall be made in such
manner and by such Person or Persons as shall be specified therein or in the
Company Order to be delivered pursuant to Section 303 or 304 with respect
thereto. Subject to the provisions of Section 303 and, if applicable, Section
304, the Trustee shall deliver and redeliver any Security in permanent global
form in the manner and upon instructions given by the Person or Persons
specified therein or in the applicable Company Order. If a Company Order
pursuant to Section 303 or 304 has been, or simultaneously is, delivered, any
instructions by the Company with respect to a Security in global form shall be
in writing but need not be accompanied by or contained in an Officers'
Certificate and need not be accompanied by an Opinion of Counsel.
Notwithstanding the provisions of Section 307, unless otherwise specified
in or pursuant to this Indenture or any Securities, payment of principal of, any
premium and interest on, and any Additional Amounts in respect of any Security
in temporary or permanent global form shall be made to the Person or Persons
specified therein.
Notwithstanding the provisions of Section 308 and except as provided in the
preceding paragraph, the Company, the Trustee and any agent of the Company and
the Trustee shall treat as the Holder of such principal amount of Outstanding
Securities represented by a Global Security (i) in the case of a Global Security
in registered
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form, the Holder of such Global Security in registered form, or (ii) in the case
of a Global Security in bearer form, the Person or Persons specified pursuant to
Section 301.
Section 205. Form of Legend for Global Securities.
Unless otherwise specified as contemplated by Section 301 for the
Securities evidenced thereby, every Global Security authenticated and delivered
hereunder shall bear a legend in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
Section 206. Form of Trustee's Certificate of Authentication.
Subject to Section 612, the Trustee's certificate of authentication shall
be in substantially the following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
[Date] THE CHASE MANHATTAN BANK,
as Trustee
By
---------------------------------------------
Authorized Officer
Section 207. Securities Repayable at the Option of Holders.
If the Company shall establish pursuant to Section 301 that the Securities
of a particular series are to be repaid before their Stated Maturity at the
option of Holders thereof, then the face of such Securities may indicate the
applicable Repayment Date(s) and Repayment Price(s), and such Securities may
include the following provisions:
If so indicated on the face of this Security, the Company may be required
to repurchase this Security at the option of the Holder, in whole or in part, on
the Repayment Date(s) and at the applicable Repayment Price(s) so indicated on
the face hereof, plus accrued interest, if any, to the applicable Repayment
Date. On or before the applicable Repayment Date, the Company shall
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deposit with the Trustee money sufficient to pay the applicable Repayment Price
and any interest accrued on the portion of this Security to be tendered for
repayment. On and after such Repayment Date, interest will cease to accrue on
this Security or any portion hereof tendered for repayment.
The repayment option may be exercised by the Holder of this Security for
less than the entire principal amount hereof, but in that event, the principal
amount hereof remaining outstanding after repayment must be in an authorized
denomination. In the event of repurchase of this Security in part only, a new
Security or Securities of this series and of like tenor for the unpurchased
portion hereof will be issued in the name of the Holder hereof upon the
cancellation hereof.
In order for this Security to be repaid, the Trustee must receive at least
30 days but not more than 60 days prior to the Repayment Date (i) this Security
with the form entitled "Option to Elect Repayment" attached to this Security
duly completed or (ii) a facsimile transmission or a letter from a member of a
national securities exchange or the National Association of Securities Dealers,
Inc. or a commercial bank or trust company in the United States setting forth
the name of the Holder of this Security, the principal amount of this Security,
the principal amount of this Security to be repaid, the certificate number or a
description of the tenor and terms of this Security, a statement that the option
to elect repayment is being exercised thereby, and a guarantee that this
Security to be repaid, together with the duly completed form entitled "Option to
Elect Repayment" attached to this Security, will be received by the Trustee not
later than the fifth Business Day after the date of such facsimile transmission
or letter; however, such facsimile transmission or letter shall only be
effective if this Security and duly completed form are received by the Trustee
by such fifth Business Day. Such notice, once given, will be irrevocable unless
waived by the Company.
Unless otherwise indicated on the face hereof, this Security will not be
subject to repayment at the option of the Holder.
ARTICLE THREE
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series.
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.
With respect to any Securities to be authenticated and delivered hereunder,
there shall be established in or pursuant to a Company Resolution and set forth
in, or determined in the manner provided in, an Officers' Certificate, or
established in one or more indentures supplemental hereto prior to the issuance
of any Securities of a series,
(1) the title of such Securities and the series in which such
Securities shall be included;
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(2) any limit upon the aggregate principal amount of the Securities
of such title or the Securities of such series which may be authenticated
and delivered under this Indenture (except for Securities authenticated
and delivered upon registration or transfer of, or in exchange for, or in
lieu of, other Securities of such series pursuant to Section 304, 305,
306, 905 or 1107, upon repayment in part of any Registered Security of
such series pursuant to Article Thirteen, upon surrender in part of any
Registered Security for conversion or exchange into Capital Stock or other
securities pursuant to its terms, or pursuant to the terms of such
Securities);
(3) if such Securities are to be issuable as Registered Securities,
as Bearer Securities or alternatively as Bearer Securities and Registered
Securities, and whether the Bearer Securities are to be issuable with
Coupons, without Coupons or both, and any restrictions applicable to the
offer, sale or delivery of the Bearer Securities and the terms, if any,
upon which Bearer Securities may be exchanged for Registered Securities
and vice versa;
(4) if any of such Securities are to be issuable in global form,
when any of such Securities are to be issuable in global form and (i)
whether such Securities are to be issued in temporary or permanent global
form or both, (ii) whether beneficial owners of interests in any such
Global Security may exchange such interests for Securities of the same
series and of like tenor and of any authorized form and denomination, and
the circumstances under which any such exchanges may occur, if other than
in the manner specified in Section 305, and (iii) the name of the
Depositary or the U.S. Depositary, as the case may be, with respect to any
Global Security;
(5) if any of such Securities are to be issuable as Bearer
Securities or in global form, the date as of which any such Bearer
Security or Global Security shall be dated (if other than the date of
original issuance of the first of such Securities to be issued);
(6) if any of such Securities are to be issuable as Bearer
Securities, whether interest in respect of any portion of a temporary
Bearer Security in global form payable in respect of an Interest Payment
Date therefor prior to the exchange, if any, of such temporary Bearer
Security for definitive Securities shall be paid to any clearing
organization with respect to the portion of such temporary Bearer Security
held for its account and, in such event, the terms and conditions
(including any certification requirements) upon which any such interest
payment received by a clearing organization will be credited to the
Persons entitled to interest payable on such Interest Payment Date;
(7) the date or dates, or the method or methods, if any, by which
such date or dates shall be determined, on which the principal of such
Securities is payable;
(8) the rate or rates at which such Securities shall bear interest,
if any, or the method or methods, if any, by which such rate or rates are
to be determined, the date or dates, if any, from which such interest
shall accrue or the method or methods, if any, by which such date or dates
are to be determined, the Interest Payment Dates, if any, on which such
interest
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shall be payable and the Regular Record Date, if any, for the interest
payable on Registered Securities on any Interest Payment Date, whether and
under what circumstances Additional Amounts on such Securities or any of
them shall be payable, the notice, if any, to Holders regarding the
determination of interest on a floating rate Security and the manner of
giving such notice, and the basis upon which interest shall be calculated
if other than that of a 360-day year of twelve 30-day months;
(9) if in addition to or other than the Borough of Manhattan, The
City of New York, the place or places where the principal of, any premium
and interest on or any Additional Amounts with respect to such Securities
shall be payable, any of such Securities that are Registered Securities
may be surrendered for registration of transfer or exchange, any of such
Securities may be surrendered for conversion or exchange and notices or
demands to or upon the Company in respect of such Securities and this
Indenture may be served, the extent to which, or the manner in which, any
interest payment or Additional Amounts on a Global Security on an Interest
Payment Date will be paid and the manner in which any principal of or
premium, if any, on any Global Security will be paid;
(10) whether any of such Securities are to be redeemable at the
option of the Company and, if so, the date or dates on which, the period
or periods within which, the price or prices at which, or the method or
methods, if any, by which such price or prices shall be determined, and
the other terms and conditions upon which such Securities may be redeemed,
in whole or in part, at the option of the Company;
(11) if the Company is obligated to redeem or purchase any of such
Securities pursuant to any sinking fund or analogous provision or at the
option of any Holder thereof and, if so, the date or dates on which, the
period or periods within which, the price or prices at which and the other
terms and conditions upon which such Securities shall be redeemed or
purchased, in whole or in part, pursuant to such obligation, and any
provisions for the remarketing of such Securities so redeemed or
purchased;
(12) the denominations in which any of such Securities that are
Registered Securities shall be issuable if other than denominations of
$1,000 and any integral multiple thereof, and the denominations in which
any of such Securities that are Bearer Securities shall be issuable if
other than the denomination of $5,000;
(13) whether the Securities of the series will be convertible into
shares of Capital Stock and/or exchangeable for other securities, and if
so, the terms and conditions upon which such Securities will be so
convertible or exchangeable, and any deletions from or modifications or
additions to this Indenture to permit or to facilitate the issuance of
such convertible or exchangeable Securities or the administration thereof;
(14) if other than the principal amount thereof, the portion of the
principal amount of any of such Securities that shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section
502 or the method by which such portion is to be determined;
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(15) if other than Dollars, the Foreign Currency in which payment
of the principal of, any premium or interest on or any Additional Amounts
with respect to any of such Securities shall be payable;
(16) if the principal of, any premium or interest on or any
Additional Amounts with respect to any of such Securities are to be
payable, at the election of the Company or a Holder thereof or otherwise,
in Dollars or in a Foreign Currency other than that in which such
Securities are stated to be payable, the date or dates on which, the
period or periods within which, and the other terms and conditions upon
which, such election may be made, and the time and manner of determining
the exchange rate between the Currency in which such Securities are stated
to be payable and the Currency in which such Securities or any of them are
to be paid pursuant to such election, and any deletions from or
modifications of or additions to the terms of this Indenture to provide
for or to facilitate the issuance of Securities denominated or payable, at
the election of the Company or a Holder thereof or otherwise, in a Foreign
Currency;
(17) whether the amount of payments of principal of, any premium or
interest on or any Additional Amounts with respect to such Securities may
be determined with reference to an index, formula or other method or
methods (which index, formula or method or methods may be based, without
limitation, on one or more Currencies, commodities, equity indices or
other indices), and, if so, the terms and conditions upon which and the
manner in which such amounts shall be determined and paid or payable;
(18) any deletions from, modifications of or additions to the
Events of Default or covenants of the Company with respect to any of such
Securities, whether or not such Events of Default or covenants are
consistent with the Events of Default or covenants set forth herein;
(19) if either or both of Section 402(2) relating to defeasance or
Section 402(3) relating to covenant defeasance shall not be applicable to
the Securities of such series, or any covenants relating to the Securities
of such series which shall be subject to covenant defeasance, and any
deletions from, or modifications or additions to, the provisions of
Article Four in respect of the Securities of such series;
(20) if any of such Securities are to be issuable upon the exercise
of warrants, and the time, manner and place for such Securities to be
authenticated and delivered;
(21) if any of such Securities are to be issuable in global form
and are to be issuable in definitive form (whether upon original issue or
upon exchange of a temporary Security) only upon receipt of certain
certificates or other documents or satisfaction of other conditions, then
the form and terms of such certificates, documents or conditions;
(22) if there is more than one Trustee, the identity of the Trustee
and, if not the Trustee, the identity of each Security Registrar, Paying
Agent or Authenticating Agent with respect to such Securities;
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(23) the Person to whom any interest on a Security of the series
shall be payable, if other than the Person in whose name that Security (or
one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest; and
(24) any other terms of such Securities and any deletions from or
modifications or additions to this Indenture in respect of such Securities.
All Securities of any one series and all Coupons, if any, appertaining to
Bearer Securities of such series shall be substantially identical except as to
Currency of payments due thereunder, denomination and the rate of interest, or
method of determining the rate of interest, if any, Maturity, and the date from
which interest, if any, shall accrue and except as may otherwise be provided by
the Company in or pursuant to the Company Resolution and set forth in, or
determined in the manner provided, in the Officers' Certificate or in any
indenture or indentures supplemental hereto pertaining to such series of
Securities. The terms of the Securities of any series may provide, without
limitation, that the Securities shall be authenticated and delivered by the
Trustee on original issue from time to time upon telephonic or written order of
persons designated in the Officers' Certificate or supplemental indenture
(telephonic instructions to be promptly confirmed in writing by such person) and
that such persons are authorized to determine, consistent with such Officers'
Certificate or any applicable supplemental indenture, such terms and conditions
of the Securities of such series as are specified in such Officers' Certificate
or supplemental indenture. All Securities of any one series need not be issued
at the same time and, unless otherwise so provided by the Company, a series may
be reopened for issuances of additional Securities of such series or to
establish additional terms of such series of Securities.
If any of the terms of the Securities of any series shall be established by
action taken by or pursuant to a Company Resolution, the Company Resolution
shall be delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms or the manner of determining the terms of
such series.
Section 302. Currency; Denominations.
Unless otherwise provided in or pursuant to this Indenture, the principal
of, any premium and interest on and any Additional Amounts with respect to the
Securities shall be payable in Dollars. Unless otherwise provided in or
pursuant to this Indenture, Registered Securities denominated in Dollars shall
be issuable in registered form without Coupons in denominations of $1,000 and
any integral multiple thereof, and the Bearer Securities denominated in Dollars
shall be issuable in the denomination of $5,000. Securities not denominated in
Dollars shall be issuable in such denominations as are established with respect
to such Securities in or pursuant to this Indenture.
Section 303. Execution, Authentication, Delivery and Dating.
Securities shall be executed on behalf of the Company by any Officer under
its corporate seal reproduced thereon and attested by its Corporate Secretary
(provided that the Corporate Secretary
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shall not attest his or her own signature as an Officer) or one of its Assistant
Corporate Secretaries. Coupons shall be executed on behalf of the Company by the
Corporate Secretary or one of the Assistant Corporate Secretaries of the
Company. The signature of any of these officers on the Securities or any Coupons
appertaining thereto may be manual or facsimile.
Securities and any Coupons appertaining thereto bearing the manual or
facsimile signatures of individuals who were at any time the proper officers of
the Company shall bind the Company, notwithstanding that such individuals or any
of them have ceased to hold such offices prior to the authentication and
delivery of such Securities or did not hold such offices at the date of such
Securities or Coupons.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities, together with any Coupons
appertaining thereto, executed by the Company, to the Trustee for authentication
and, provided that the Company Resolution and Officers' Certificate or
supplemental indenture or indentures with respect to such Securities referred to
in Section 301 and a Company Order for the authentication and delivery of such
Securities have been delivered to the Trustee, the Trustee in accordance with
the Company Order and subject to the provisions hereof and of such Securities
shall authenticate and deliver such Securities; provided, however, that in the
case of Securities offered in a Periodic Offering, the Trustee shall
authenticate and deliver such Securities from time to time in accordance with
such other procedures (including, without limitation, the receipt by the Trustee
of oral or electronic instructions from the Company or its duly authorized
agents, promptly confirmed in writing) acceptable to the Trustee as may be
specified by or pursuant to a Company Order delivered to the Trustee prior to
the time of the first authentication of Securities of such series. If the form
or terms of the Securities of the series have been established by or pursuant to
one or more Company Resolutions as permitted by Sections 201 and 301, in
authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities and any Coupons appertaining
thereto, the Trustee shall be entitled to receive, and (subject to Sections
315(a) through 315(d) of the Trust Indenture Act) shall be fully protected in
relying upon,
(1) an Opinion of Counsel to the effect that:
(a) 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 and Coupons, if any, have been established in
conformity with the provisions of this Indenture;
(b) all conditions precedent provided for in this Indenture to
the authentication and delivery of such Securities and Coupons, if any,
appertaining thereto have been complied with and that such Securities, and
Coupons, 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 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
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constitute legally valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, subject to
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
(c) this Indenture has been qualified under the Trust Indenture
Act;
and
(2) 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.
If all the Securities of any series are not to be issued at one time, it
shall not be necessary to deliver an Opinion of Counsel at the time of issuance
of each Security, but such opinion shall be delivered at or before the time of
issuance of the first Security of such series. After any such first delivery,
any separate request by the Company that the Trustee authenticate Securities of
such series for original issue will be deemed to be a certification by the
Company that all conditions precedent provided for in this Indenture relating to
authentication and delivery of such Securities continue to have been complied
with.
The Trustee shall not be required to authenticate or to cause an
Authenticating Agent to authenticate any 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 or if the Trustee,
being advised by counsel, determines that such action may not lawfully be taken.
With respect to Securities of a series offered in a Periodic Offering, the
Trustee may rely, as to the authorization by the Company of any of such
Securities, the form and terms thereof and the legality, validity, binding
effect and enforceability thereof, upon the Opinion of Counsel and the other
documents delivered pursuant to Sections 201 and 301 and this Section, as
applicable, in connection with the first authentication of Securities of such
series.
Each Registered Security shall be dated the date of its authentication.
Each Bearer Security and any temporary Bearer Security in global form shall be
dated as of the date specified in or pursuant to this Indenture.
No Security or Coupon appertaining thereto shall be entitled to any benefit
under this Indenture or be valid or obligatory for any purpose, unless there
appears on such Security a certificate of authentication substantially in the
form provided for in Section 206 or 612 executed by or on behalf of the Trustee
or by the Authenticating Agent by the manual signature of one of its authorized
officers. Such certificate upon any Security shall be conclusive evidence, and
the only
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evidence, that such Security has been duly authenticated and delivered
hereunder. Except as permitted by Section 306 or 307, the Trustee shall not
authenticate and deliver any Bearer Security unless all Coupons appertaining
thereto then matured have been detached and canceled.
Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 309, for all purposes of this Indenture such Security shall
be deemed never to have been authenticated and delivered hereunder and shall
never be entitled to the benefits of this Indenture.
Section 304. Temporary Securities.
Pending the preparation of definitive Securities, the Company may execute
and deliver to the Trustee and, upon Company Order, the Trustee shall
authenticate and deliver, in the manner provided in Section 303, temporary
Securities in lieu thereof which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued, in registered form or, if authorized in or pursuant to this
Indenture, in bearer form with one or more Coupons or without Coupons and with
such appropriate insertions, omissions, substitutions and other variations as
the officers of the Company executing such Securities may determine, as
conclusively evidenced by their execution of such Securities. Such temporary
Securities may be in global form.
Except in the case of temporary Securities in global form, which shall be
exchanged in accordance with the provisions thereof, if temporary Securities are
issued, the Company shall cause definitive Securities to be prepared without
unreasonable delay. After the preparation of definitive Securities of the same
series and containing terms and provisions that are identical to those of any
temporary Securities, such temporary Securities shall be exchangeable for such
definitive Securities upon surrender of such temporary Securities at an Office
or Agency for such Securities, without charge to any Holder thereof. Upon
surrender for cancellation of any one or more temporary Securities (accompanied
by any unmatured Coupons appertaining thereto), the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a like principal
amount of definitive Securities of authorized denominations of the same series
and containing identical terms and provisions; provided, however, that no
definitive Bearer Security, except as provided in or pursuant to this Indenture,
shall be delivered in exchange for a temporary Registered Security; and
provided, further, that a definitive Bearer Security shall be delivered in
exchange for a temporary Bearer Security only in compliance with the conditions
set forth in or pursuant to this Indenture. Unless otherwise provided in or
pursuant to this Indenture with respect to a temporary Global Security, 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.
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Section 305. Registration, Transfer and Exchange.
With respect to the Registered Securities of each series, if any, the
Company shall cause to be kept a register (each such register being herein
sometimes referred to as the "Security Register") at an Office or Agency for
such series in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of the Registered
Securities of such series and of transfers of the Registered Securities of such
series. Such Office or Agency shall be the "Security Registrar" for that series
of Securities. Unless otherwise specified in or pursuant to this Indenture or
the Securities, the Trustee shall be the initial Security Registrar for each
series of Securities. The Company shall have the right to remove and replace
from time to time the Security Registrar for any series of Securities; provided
that no such removal or replacement shall be effective until a successor
Security Registrar with respect to such series of Securities shall have been
appointed by the Company and shall have accepted such appointment. In the event
that the Trustee shall not be or shall cease to be Security Registrar with
respect to a series of Securities, it shall have the right to examine the
Security Register for such series at all reasonable times. There shall be only
one Security Register for each series of Securities.
Upon surrender for registration of transfer of any Registered Security of
any series at any Office or Agency for such series, the Company shall execute,
and the Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Registered Securities of the same
series denominated as authorized in or pursuant to this Indenture, of a like
aggregate principal amount bearing a number not contemporaneously outstanding
and containing identical terms and provisions.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series containing
identical terms and provisions, in any authorized denominations, and of a like
aggregate principal amount, upon surrender of the Securities to be exchanged at
any Office or Agency for such series. Whenever any Registered Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Registered Securities which the Holder making the
exchange is entitled to receive.
If provided in or pursuant to this Indenture, with respect to Securities of
any series, at the option of the Holder, Bearer Securities of such series may be
exchanged for Registered Securities of such series containing identical terms,
denominated as authorized in or pursuant to this Indenture and in the same
aggregate principal amount, upon surrender of the Bearer Securities to be
exchanged at any Office or Agency for such series, with all unmatured Coupons
and all matured Coupons in default thereto appertaining. If the Holder of a
Bearer Security is unable to produce any such unmatured Coupon or Coupons or
matured Coupon or Coupons in default, such exchange may be effected if the
Bearer Securities are accompanied by payment in funds acceptable to the Company
and the Trustee in an amount equal to the face amount of such missing Coupon or
Coupons, or the surrender of such missing Coupon or Coupons may be waived by the
Company and the Trustee if there is furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Bearer Security shall surrender to any Paying
Agent any such missing Coupon in respect of which such a payment shall have been
made, such Holder shall be entitled to receive the amount of such payment;
provided, however, that, except
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as otherwise provided in Section 1002, interest represented by Coupons shall be
payable only upon presentation and surrender of those Coupons at an Office or
Agency for such series located outside the United States. Notwithstanding the
foregoing, in case a Bearer Security of any series is surrendered at any such
Office or Agency for such series in exchange for a Registered Security of such
series and like tenor after the close of business at such Office or Agency on
(i) any Regular Record Date and before the opening of business at such Office or
Agency on the relevant Interest Payment Date, or (ii) any Special Record Date
and before the opening of business at such Office or Agency on the related date
for payment of Defaulted Interest, such Bearer Security shall be surrendered
without the Coupon relating to such Interest Payment Date or proposed date of
payment, as the case may be (or, if such Coupon is so surrendered with such
Bearer Security, such Coupon shall be returned to the Person so surrendering the
Bearer Security), and interest or Defaulted Interest, as the case may be, shall
not be payable on such Interest Payment Date or proposed date for payment, as
the case may be, in respect of the Registered Security issued in exchange for
such Bearer Security, but shall be payable only to the Holder of such Coupon
when due in accordance with the provisions of this Indenture.
If provided in or pursuant to this Indenture with respect to Securities of
any series, at the option of the Holder, Registered Securities of such series
may be exchanged for Bearer Securities upon such terms and conditions as may be
provided in or pursuant to this Indenture with respect to such series.
Whenever any Securities are surrendered for exchange as contemplated by the
immediately preceding two paragraphs, the Company shall execute, and the Trustee
shall authenticate and deliver, the Securities which the Holder making the
exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise provided in or pursuant
to this Indenture, any Global Security shall be exchangeable for definitive
Securities only if (i) the Depositary is at any time unwilling, unable or
ineligible to continue as Depositary and a successor depositary is not appointed
by the Company within 90 days of the date the Company is so informed in writing,
(ii) the Company executes and delivers to the Trustee a Company Order to the
effect that such Global Security shall be so exchangeable, or (iii) an Event of
Default has occurred and is continuing with respect to the Securities. If the
beneficial owners of interests in a Global Security are entitled to exchange
such interests for definitive Securities as the result of an event described in
clause (i), (ii) or (iii) of the preceding sentence, then without unnecessary
delay but in any event not later than the earliest date on which such interests
may be so exchanged, the Company shall deliver to the Trustee definitive
Securities in such form and denominations as are required by or pursuant to this
Indenture, and of the same series, containing identical terms and in aggregate
principal amount equal to the principal amount of such Global Security, executed
by the Company. On or after the earliest date on which such interests may be so
exchanged, such Global Security shall be surrendered from time to time by the
U.S. Depositary or such other Depositary as shall be specified in the Company
Order with respect thereto, and in accordance with instructions given to the
Trustee and the U.S. Depositary or such other Depositary, as the case may be
(which instructions shall be in writing but need not be contained in or
accompanied by an Officers' Certificate or be accompanied by an Opinion of
Counsel), as shall be specified in the Company Order with respect thereto to the
Trustee, as the Company's agent for such purpose, to be exchanged, in whole or
in part, for definitive Securities as
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described above without charge. The Trustee shall authenticate and make
available for delivery, in exchange for each portion of such surrendered Global
Security, a like aggregate principal amount of definitive Securities of the same
series of authorized denominations and of like tenor as the portion of such
Global Security to be exchanged, which (unless such Securities are not issuable
both as Bearer Securities and as Registered Securities, in which case the
definitive Securities exchanged for the Global Security shall be issuable only
in the form in which the Securities are issuable, as provided in or pursuant to
this Indenture) shall be in the form of Bearer Securities or Registered
Securities, or any combination thereof, as shall be specified by the beneficial
owner thereof, but subject to the satisfaction of any certification or other
requirements to the issuance of Bearer Securities; provided, however, that no
such exchanges may occur during a period beginning at the opening of business 15
days before any selection of Securities of the same series to be redeemed and
ending on the relevant Redemption Date; and provided, further, that (unless
otherwise provided in or pursuant to this Indenture) no Bearer Security
delivered in exchange for a portion of a Global Security shall be mailed or
otherwise delivered to any location in the United States. Promptly following any
such exchange in part, such Global Security shall be returned by the Trustee to
such Depositary or the U.S. Depositary, as the case may be, or such other
Depositary or U.S. Depositary referred to above in accordance with the
instructions of the Company referred to above. If a Registered Security is
issued in exchange for any portion of a Global Security after the close of
business at the Office or Agency for such Security where such exchange occurs on
or after (i) any Regular Record Date for such Security and before the opening of
business at such Office or Agency on the next Interest Payment Date, or (ii) any
Special Record Date for such Security and before the opening of business at such
Office or Agency on the related proposed date for payment of interest or
Defaulted Interest, as the case may be, interest shall not be payable on such
Interest Payment Date or proposed date for payment, as the case may be, in
respect of such Registered Security, but shall be payable on such Interest
Payment Date or proposed date for payment, as the case may be, only to the
Person to whom interest in respect of such portion of such Global Security shall
be payable in accordance with the provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company evidencing the same
debt and entitling the Holders thereof to the same benefits under this Indenture
as the Securities surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange or redemption shall (if so required by the Company or
the Security Registrar for such Security) be duly endorsed, or be accompanied by
a written instrument of transfer in form satisfactory to the Company and the
Security Registrar for such Security duly executed by the Holder thereof or his
attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange, or redemption of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge and any other
expenses (including fees and expenses of the Trustee) that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 304, 905 or 1107, upon repayment in part of
any Registered Security pursuant to Article Thirteen, or upon surrender in part
of any Registered Security for conversion or
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exchange into Capital Stock or other securities pursuant to its terms, in each
case not involving any transfer.
Except as otherwise provided in or pursuant to this Indenture, the Company
shall not be required (i) to issue, register the transfer of or exchange any
Securities during a period beginning at the opening of business 15 days before
the day of the selection for redemption of Securities of like tenor and the same
series under Section 1103 and ending at the close of business on the day of such
selection, or (ii) to register the transfer of or exchange any Registered
Security so selected for redemption in whole or in part, except in the case of
any Security to be redeemed in part, the portion thereof not to be redeemed, or
(iii) to exchange any Bearer Security so selected for redemption except, to the
extent provided with respect to such Bearer Security, that such Bearer Security
may be exchanged for a Registered Security of like tenor and the same series,
provided that such Registered Security shall be immediately surrendered for
redemption with written instruction for payment consistent with the provisions
of this Indenture or (iv) to issue, register the transfer of or exchange any
Security which, in accordance with its terms, has been surrendered for repayment
at the option of the Holder, except the portion, if any, of such Security not to
be so repaid.
The provisions of Clauses (1), (2) and (3) below shall apply only to Global
Securities:
(1) Each Registered Global Security authenticated under this
Indenture shall be registered in the name of the Depositary designated for
such Global Security or a nominee thereof and delivered to such Depositary
or a nominee thereof or custodian therefor, and each such Global Security
shall constitute a single Security for all purposes of this Indenture.
(2) Any exchange or transfer of a Registered Global Security for other
Securities may be made in whole or in part, and all Securities issued in
exchange for or upon transfer of a Global Security or any portion thereof
shall be registered in such names as the Depositary for such Global
Security shall direct.
(3) Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security or any
portion thereof, whether pursuant to this Section, Section 304, 306, 905 or
1107 or otherwise, shall be authenticated and delivered in the form of, and
shall be, a Global Security, unless such Security is registered in the name
of a Person other than the Depositary for such Global Security or a nominee
thereof.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security or a Security with a mutilated Coupon
appertaining to it is surrendered to the Trustee, subject to the provisions of
this Section 306, the Company shall execute and the Trustee shall authenticate
and deliver in exchange therefor a new Security of the same series containing
identical terms and of like principal amount and bearing a number not
contemporaneously outstanding, with Coupons appertaining thereto corresponding
to the Coupons, if any, appertaining to the surrendered Security.
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If there be delivered to the Company and to the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security or Coupon,
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security or Coupon has been acquired by a
bona fide purchaser, the Company shall execute and, upon the Company's request
the Trustee shall authenticate and deliver, in exchange for or in lieu of any
such mutilated, destroyed, lost or stolen Security or in exchange for the
Security to which a destroyed, lost or stolen Coupon appertains with all
appurtenant Coupons not destroyed, lost or stolen, a new Security of the same
series containing identical terms and of like principal amount and bearing a
number not contemporaneously outstanding, with Coupons corresponding to the
Coupons, if any, appertaining to such destroyed, lost or stolen Security or to
the Security to which such destroyed, lost or stolen Coupon appertains.
Notwithstanding the foregoing provisions of this Section 306, in case any
mutilated, destroyed, lost or stolen Security or Coupon has become or is about
to become due and payable, the Company in its discretion may, instead of issuing
a new Security, pay such Security or Coupon; provided, however, that payment of
principal of, any premium or interest on or any Additional Amounts with respect
to any Bearer Securities shall, except as otherwise provided in Section 1002, be
payable only at an Office or Agency for such Securities located outside the
United States and, unless otherwise provided in or pursuant to this Indenture
(including this paragraph), any interest on Bearer Securities and any Additional
Amounts with respect to such interest shall be payable only upon presentation
and surrender of the Coupons appertaining thereto.
Upon the issuance of any new Security under this Section, 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 expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security, with any Coupons appertaining thereto issued pursuant
to this Section in lieu of any destroyed, lost or stolen Security, or in
exchange for a Security to which a destroyed, lost or stolen Coupon appertains
shall constitute a separate obligation of the Company, whether or not the
destroyed, lost or stolen Security and Coupons appertaining thereto or the
destroyed, lost or stolen Coupon shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of such series and any
Coupons, if any, duly issued hereunder.
The provisions of this Section, as amended or supplemented pursuant to this
Indenture with respect to particular Securities or generally, shall be exclusive
and shall preclude (to the extent lawful) all other rights and remedies with
respect to the replacement or payment of mutilated, destroyed, lost or stolen
Securities or Coupons.
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Section 307. Payment of Interest and Certain Additional Amounts; Rights to
Interest and Certain Additional Amounts Preserved.
Unless otherwise provided in or pursuant to this Indenture, any interest on
and any Additional Amounts with respect to any Registered Security which shall
be payable, and are punctually paid or duly provided for, on any Interest
Payment Date shall be paid to the Person in whose name such Security (or one or
more Predecessor Securities) is registered as of the close of business on the
Regular Record Date for such interest. Unless otherwise provided in or pursuant
to this Indenture, in case a Bearer Security is surrendered in exchange for a
Registered Security after the close of business at an Office or Agency for such
Security on any Regular Record Date therefor and before the opening of business
at such Office or Agency on the next succeeding Interest Payment Date therefor,
such Bearer Security shall be surrendered without the Coupon relating to such
Interest Payment Date and interest shall not be payable on such Interest Payment
Date in respect of the Registered Security issued in exchange for such Bearer
Security, but shall be payable only to the Holder of such Coupon when due in
accordance with the provisions of this Indenture.
Unless otherwise provided in or pursuant to this Indenture, any interest
on and any Additional Amounts with respect to any Registered Security which
shall be payable, but shall not be punctually paid or duly provided for, on any
Interest Payment Date for such Registered Security (herein called "Defaulted
Interest") shall forthwith cease to be payable to the Holder thereof on the
relevant Regular Record Date by virtue of having been such Holder; and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Person in whose name such Registered Security (or a Predecessor
Security thereof) shall be registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which shall be
fixed in the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on such
Registered Security and the date of the proposed payment, and at the same
time the Company shall deposit with the Trustee an amount of money equal to
the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for such
deposit on or prior to the date of the proposed payment, such money when so
deposited to be held in trust for the benefit of the Person entitled to
such Defaulted Interest as in this Clause provided. Thereupon, the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest
which shall be not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after the receipt by
the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record Date and, in the name
and at the expense of the Company shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to
be mailed, first-class postage prepaid, to the Holder of such Registered
Security (or a Predecessor Security thereof) at his address as it appears
in the Security Register not less than 10 days prior to such Special Record
Date. The Trustee may, in its discretion, in the name and at the expense
of the Company cause a similar notice to be published at least once in an
Authorized Newspaper of general circulation in the Borough of Manhattan,
The City of New York, but such publication shall not be a condition
precedent
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to the establishment of such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor
having been mailed as aforesaid, such Defaulted Interest shall be paid to
the Person in whose name such Registered Security (or a Predecessor
Security thereof) shall be registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the
following clause (2). In case a Bearer Security is surrendered at the
Office or Agency for such Security in exchange for a Registered Security
after the close of business at such Office or Agency on any Special Record
Date and before the opening of business at such Office or Agency on the
related proposed date for payment of Defaulted Interest, such Bearer
Security shall be surrendered without the Coupon relating to such Defaulted
Interest and Defaulted Interest shall not be payable on such proposed date
of payment in respect of the Registered Security issued in exchange for
such Bearer Security, but shall be payable only to the Holder of such
Coupon when due in accordance with the provisions of this Indenture.
(2) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which such Security may be listed, and upon such
notice as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this Clause,
such payment shall be deemed practicable by the Trustee.
Unless otherwise provided in or pursuant to this Indenture or the
Securities of any particular series, at the option of the Company, interest on
Registered Securities that bear interest may be paid by mailing a check to the
address of the Person entitled thereto as such address shall appear in the
Security Register or by transfer to an account maintained by the payee with a
bank located in the United States, provided that appropriate wire transfer
instructions shall have been delivered by such payee to the Paying Agent at
least five Business Days prior to the applicable date for payment of interest.
Subject to the foregoing provisions of this Section and Section 305, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
Section 308. Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Registered Security is registered in the
Security Register as the owner of such Registered Security for the purpose of
receiving payment of principal of, any premium and (subject to Sections 305 and
307) interest on and any Additional Amounts with respect to such Registered
Security and for all other purposes whatsoever, whether or not any payment with
respect to such Registered Security shall be overdue, and neither the Company,
the Trustee or any agent of the Company or the Trustee shall be affected by
notice to the contrary.
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The Company, the Trustee and any agent of the Company or the Trustee may
treat the bearer of any Bearer Security or the bearer of any Coupon as the
absolute owner of such Security or Coupon for the purpose of receiving payment
thereof or on account thereof and for all other purposes whatsoever, whether or
not any payment with respect to such Security or Coupon shall be overdue, and
neither the Company, the Trustee or any agent of the Company or the Trustee
shall be affected by notice to the contrary.
No holder of any beneficial interest in any Global Security held on its
behalf by a U.S. Depositary or Depositary shall have any rights under this
Indenture with respect to such Global Security, and such U.S. Depositary or
Depositary may be treated by the Company, the Trustee, and any agent of the
Company or the Trustee as the owner of such Global Security for all purposes
whatsoever. None of the Company, the Trustee, any Paying Agent or the Security
Registrar 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.
Section 309. Cancellation.
All Securities and Coupons surrendered for payment, redemption,
registration of transfer, exchange or conversion or for credit against any
sinking fund payment shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee, and any such Securities and Coupons, as well as
Securities and Coupons surrendered directly to the Trustee for any such purpose,
shall be canceled promptly by the Trustee. The Company may at any time deliver
to the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be canceled promptly by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for any
Securities canceled as provided in this Section, except as expressly permitted
by or pursuant to this Indenture. All canceled Securities and Coupons held by
the Trustee shall be disposed of by the Trustee in accordance with its customary
procedures, unless by a Company Order the Company directs their return to it.
Section 310. Computation of Interest.
Except as otherwise provided in or pursuant to this Indenture or in the
Securities of any series, interest on the Securities shall be computed on the
basis of a 360-day year of twelve 30-day months.
Section 311. CUSIP, CINS or ISIN Numbers.
The Company in issuing the Securities may use "CUSIP", "CINS" or "ISIN"
numbers (if then generally in use), and, if so, the Trustee or the Company shall
use "CUSIP", "CINS" or "ISIN" numbers in notices of redemption or repurchase as
a convenience to Holders; provided that any such
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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 or repurchase and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption or
repurchase shall not be affected by any defect in or omission of such numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE OF INDENTURE
Section 401. Satisfaction and Discharge.
Upon the direction of the Company by a Company Order, this Indenture shall
cease to be of further effect with respect to any series of Securities specified
in such Company Order and any Coupons appertaining thereto, and the Trustee, on
receipt of a Company Order, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture as to
such series, when
(1) either
(a) all Securities of such series theretofore authenticated and
delivered and all Coupons appertaining thereto (other than (i) Coupons
appertaining to Bearer Securities of such series surrendered in
exchange for Registered Securities of such series and maturing after
such exchange whose surrender is not required or has been waived as
provided in Section 305, (ii) Securities and Coupons of such series
which have been destroyed, lost or stolen and which have been replaced
or paid as provided in Section 306, (iii) Coupons appertaining to
Securities of such series called for redemption and maturing after the
relevant Redemption Date whose surrender has been waived as provided in
Section 1106, and (iv) Securities and Coupons of such series for whose
payment money has theretofore been deposited in trust or segregated and
held in trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
(b) all such Securities of such series and, in the case of (i) or
(ii) below, any Coupons appertaining thereto not theretofore delivered
to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
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(iii) if redeemable at the option of the Company,
are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving
of notice of redemption by the Trustee in the name, and
at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds in
trust for such purpose, money in the Currency in which such Securities
are payable in an amount sufficient to pay and discharge the entire
indebtedness on such Securities and any Coupons appertaining thereto
not theretofore delivered to the Trustee for cancellation, including
the principal of, any premium and interest on, and, to the extent that
the Securities of such series provide for the payment of Additional
Amounts thereon and the amount of any such Additional Amounts is at
the time of deposit reasonably determinable by the Company (in the
exercise by the Company of its sole and absolute discretion), any
Additional Amounts with respect to, such Securities and any Coupons
appertaining thereto, to the date of such deposit (in the case of
Securities which have become due and payable) or to the Maturity
thereof, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company with respect to the Outstanding Securities of such
series and any Coupons appertaining thereto; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture as to such series have been complied with.
In the event there are Securities of two or more series hereunder, the
Trustee shall be required to execute an instrument acknowledging satisfaction
and discharge of this Indenture only if requested to do so with respect to
Securities of such series as to which it is Trustee and if the other conditions
thereto are met.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to any series of Securities, the obligations of the Company to the
Trustee under Section 607 and, if money shall have been deposited with the
Trustee pursuant to subclause (b) of clause (1) of this Section, the obligations
of the Company and the Trustee with respect to the Securities of such series
under Sections 305, 306, 403, 1002 and 1003, with respect to the payment of
Additional Amounts, if any, with respect to such Securities as contemplated by
Section 1004 (but only to the extent that the Additional Amounts payable with
respect to such Securities exceed the amount deposited in respect of such
Additional Amounts pursuant to Section 401(1)(b)), and with respect to any
rights to convert or exchange such Securities into Capital Stock or other
securities, shall survive.
Section 402. Defeasance and Covenant Defeasance.
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(1) Unless, pursuant to Section 301, either or both of (i) defeasance of
the Securities of or within a series under clause (2) of this Section 402 or
(ii) covenant defeasance of the Securities of or within a series under clause
(3) of this Section 402 shall not be applicable with respect to the Securities
of such series, then such provisions, together with the other provisions of this
Section 402 (with such modifications thereto as may be specified pursuant to
Section 301 with respect to any Securities), shall be applicable to such
Securities and any Coupons appertaining thereto, and the Company may at its
option by Company Resolution, at any time, with respect to such Securities and
any Coupons appertaining thereto, elect to have Section 402(2) or Section 402(3)
be applied to such Outstanding Securities and any Coupons appertaining thereto
upon compliance with the conditions set forth below in this Section 402.
(2) Upon the Company's exercise of the above option applicable to this
Section 402(2) with respect to any Securities of or within a series, the Company
shall be deemed to have been discharged from its obligations with respect to
such Outstanding Securities and any Coupons appertaining thereto on the date the
conditions set forth in clause (4) of this Section 402 are satisfied
(hereinafter, "defeasance"). For this purpose, such defeasance means that the
Company shall be deemed to have paid and discharged the entire indebtedness
represented by such Outstanding Securities and any Coupons appertaining thereto,
which shall thereafter be deemed to be "Outstanding" only for the purposes of
clause (5) of this Section 402 and the other Sections of this Indenture referred
to in clauses (i) and (ii) below, and to have satisfied all of its other
obligations under such Securities and any Coupons appertaining thereto and this
Indenture insofar as such Securities and any Coupons appertaining thereto are
concerned (and the Trustee, at the expense of the Company , shall execute proper
instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (i) the rights of
Holders of such Outstanding Securities and any Coupons appertaining thereto to
receive, solely from the trust fund described in clause (4) of this Section 402
and as more fully set forth in such Section, payments in respect of the
principal of (and premium, if any) and interest, if any, on, and Additional
Amounts, if any, with respect to, such Securities and any Coupons appertaining
thereto when such payments are due, and any rights of such Holder to convert or
exchange such Securities into Capital Stock or other securities, (ii) the
obligations of the Company and the Trustee with respect to such Securities under
Sections 305, 306, 1002 and 1003, with respect to the payment of Additional
Amounts, if any, on such Securities as contemplated by Section 1004 (but only to
the extent that the Additional Amounts payable with respect to such Securities
exceed the amount deposited in respect of such Additional Amounts pursuant to
Section 401(4)(a) below), and with respect to any rights to convert or exchange
such Securities into Capital Stock or other securities, (iii) the rights,
powers, trusts, duties and immunities of the Trustee hereunder (including under
Section 607) and (iv) this Section 402. The Company may exercise its option
under this Section 402(2) notwithstanding the prior exercise of its option under
clause (3) of this Section 402 with respect to such Securities and any Coupons
appertaining thereto.
(3) Upon the Company's exercise of the above option applicable to this
Section 402(3) with respect to any Securities of or within a series, the Company
shall be released from any covenant applicable to such Securities specified
pursuant to Section 301(19), with respect to such Outstanding Securities and any
Coupons appertaining thereto on and after the date the conditions set forth in
clause (4) of this Section 402 are satisfied (hereinafter, "covenant
defeasance"), and such Securities
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and any Coupons appertaining thereto shall thereafter be deemed to be not
"Outstanding" for the purposes of any direction, waiver, consent or declaration
or Act of Holders (and the consequences of any thereof) in connection with any
such covenant, but shall continue to be deemed "Outstanding" for all other
purposes hereunder. For this purpose, such covenant defeasance means that, with
respect to such Outstanding Securities and any Coupons appertaining thereto, the
Company may omit to comply with, and shall have no liability in respect of, any
term, condition or limitation set forth in any such covenant, whether directly
or indirectly, by reason of any reference elsewhere herein to any such covenant
or by reason of reference in any such covenant to any other provision herein or
in any other document and such omission to comply shall not constitute a default
or an Event of Default under Section 501(4) or 501(7) or otherwise, as the case
may be, but, except as specified above, the remainder of this Indenture and such
Securities and Coupons appertaining thereto shall be unaffected thereby.
(4) The following shall be the conditions to application of clause (2) or
(3) of this Section 402 to any Outstanding Securities of or within a series and
any Coupons appertaining thereto:
(a) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 608 who shall agree to comply with the provisions of this
Section 402 applicable to it) as trust funds in trust for the purpose of
making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Securities and any
Coupons appertaining thereto, (1) an amount in Dollars or in such Foreign
Currency in which such Securities and any Coupons appertaining thereto are
then specified as payable at Stated Maturity, or (2) Government Obligations
applicable to such Securities and Coupons appertaining thereto (determined
on the basis of the Currency in which such Securities and Coupons
appertaining thereto are then specified as payable at Stated Maturity)
which through the scheduled payment of principal and interest in respect
thereof in accordance with their terms will provide, not later than one day
before the due date of any payment of principal of (and premium, if any)
and interest, if any, on such Securities and any Coupons appertaining
thereto, money in an amount, or (3) a combination thereof, in any case, in
an amount, sufficient, without consideration of any reinvestment of such
principal and interest, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, and which shall be applied
by the Trustee (or other qualifying trustee) to pay and discharge, (y) the
principal of (and premium, if any) and interest, if any, on, and, to the
extent that such Securities provide for the payment of Additional Amounts
thereon and the amount of any such Additional Amounts is at the time of
deposit reasonably determinable by the Company (in the exercise by the
Company of its sole and absolute discretion), any Additional Amounts with
respect to, such Outstanding Securities and any Coupons appertaining
thereto to and including the Stated Maturity of such principal or
installment of principal or interest or the Redemption Date established
pursuant to clause (d) below, if any, and (z) any mandatory sinking fund
payments or analogous payments applicable to such Outstanding Securities
and any Coupons appertaining thereto on the day on which such payments are
due and payable in accordance with the terms of this Indenture and of such
Securities and any Coupons appertaining thereto.
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(b) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other material agreement or instrument to which the Company is a party
or by which it is bound.
(c) Solely in the case of an election under clause (2) of this Section
402, no Event of Default or event which with notice or lapse of time or
both would become an Event of Default with respect to such Securities and
any Coupons appertaining thereto shall have occurred and be continuing on
the date of such deposit and, with respect to defeasance only, at any time
during the period ending on the 91st day after the date of such deposit (it
being understood that this condition shall not be deemed satisfied until
the expiration of such period).
(d) If the Securities are to be redeemed prior to Stated Maturity
(other than from mandatory sinking fund payments or analogous payments),
notice of such redemption shall have been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee shall have been
made.
(e) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance or covenant defeasance under clause (2) or (3)
of this Section 402 (as the case may be) have been complied with.
(f) Notwithstanding any other provisions of this Section 402(4), such
defeasance or covenant defeasance shall be effected in compliance with any
additional or substitute terms, conditions or limitations which may be
imposed on the Company in connection therewith pursuant to Section 301.
(5) Subject to the provisions of the last paragraph of Section 1003, all
money and Government Obligations (or other property as may be provided pursuant
to Section 301) (including the proceeds thereof) deposited with the Trustee (or
other qualifying trustee, collectively for purposes of this Section 402(5) and
Section 403, the "Trustee") pursuant to clause (4) of Section 402 in respect of
any Outstanding Securities of any series and any Coupons appertaining thereto
shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Securities and any Coupons appertaining thereto and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities and any Coupons appertaining
thereto of all sums due and to become due thereon in respect of principal (and
premium, if any) and interest and Additional Amounts, if any, but such money
need not be segregated from other funds except to the extent required by law.
Unless otherwise specified in or pursuant to this Indenture or any
Securities, if, after a deposit referred to in Section 402(4)(a) has been made,
(a) the Holder of a Security in respect of which such deposit was made is
entitled to, and does, elect pursuant to Section 301 or the terms of such
Security to receive payment in a Currency other than that in which the deposit
pursuant to Section 402(4)(a) has been made in respect of such Security, or (b)
a Conversion Event occurs in respect of the Foreign
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Currency in which the deposit pursuant to Section 402(4)(a) has been made, the
indebtedness represented by such Security and any Coupons appertaining thereto
shall be deemed to have been, and will be, fully discharged and satisfied
through the payment of the principal of (and premium, if any), and interest, if
any, on, and Additional Amounts, if any, with respect to, such Security as the
same becomes due out of the proceeds yielded by converting (from time to time as
specified below in the case of any such election) the amount or other property
deposited in respect of such Security into the Currency in which such Security
becomes payable as a result of such election or Conversion Event based on (x) in
the case of payments made pursuant to clause (a) above, the applicable market
exchange rate for such Currency in effect on the second Business Day prior to
each payment date, or (y) with respect to a Conversion Event, the applicable
market exchange rate for such Foreign Currency in effect (as nearly as feasible)
at the time of the Conversion Event.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge, imposed on or assessed against the Government Obligations
deposited pursuant to this Section 402 or the principal or interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of such Outstanding Securities and any Coupons
appertaining thereto.
Anything in this Section 402 to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon Company Request any
money or Government Obligations (or other property and any proceeds therefrom)
held by it as provided in clause (4) of this Section 402 which, in the opinion
of a nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of the
amount thereof which would then be required to be deposited to effect a
defeasance or covenant defeasance, as applicable, in accordance with this
Section 402.
Section 403. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all money
and Government Obligations deposited with the Trustee (or other qualifying
Trustee) pursuant to Section 401 or 402 shall be held in trust and applied by
it, in accordance with the provisions of the Securities, the Coupons and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee (or other
qualifying Trustee) may determine, to the Persons entitled thereto, of the
principal, premium, interest and Additional Amounts for whose payment such money
has or Government Obligations have been deposited with or received by the
Trustee (or other qualifying Trustee); but such money and Government Obligations
need not be segregated from other funds except to the extent required by law.
Section 404. Qualifying Trustee.
Any trustee appointed pursuant to Section 402 for the purpose of holding
money or Government Obligations deposited pursuant to that Section shall be
appointed under an agreement in form acceptable to the Trustee and shall provide
to the Trustee a certificate of such trustee, upon which certificate the Trustee
shall be entitled to conclusively rely, that all conditions precedent
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provided for herein to the related defeasance or covenant defeasance have been
complied with. In no event shall the Trustee be liable for any acts or omissions
of said trustee.
Section 405. Reinstatement.
If the Trustee (or other qualifying trustee) is unable to apply any money
or Government Obligations in accordance with Section 401 or 402, as applicable,
by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the Company's
obligations under this Indenture, the Securities and the Coupons, if any,
appertaining thereto shall be revived and reinstated as though no deposit had
occurred pursuant to Section 401 or 402 until such time as the Trustee (or other
qualifying trustee) is permitted to apply all such money or Government
Obligations in accordance with Section 401 or 402, as applicable; provided,
however, that if the Company has made any payment of principal of or any premium
or interest on any Securities or Coupons because of the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Securities or Coupons to receive such payment from the money or Government
Obligations held by the Trustee (or other qualifying trustee).
ARTICLE FIVE
REMEDIES
Section 501. Events of Default.
"Event of Default", wherever used herein with respect to Securities of any
series, 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) unless
such event is specifically deleted or modified in or pursuant to the
supplemental indenture, Company Resolution or Officers' Certificate establishing
the terms of such series pursuant to this Indenture:
(1) default in the payment of any interest on, or any Additional
Amounts payable in respect of any interest on, any Security of such series
when such interest or such Additional Amounts become due and payable, and
continuance of such default for a period of 60 days; or
(2) default in the payment of the principal of or premium, if any, on,
or any Additional Amounts payable in respect of the principal of or
premium, if any, on, any Security of such series when due upon Maturity; or
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(3) default in the payment of any sinking fund payment, or analogous
provision, when and as due by the terms of a Security of such series, and
continuance of such default for a period of 60 days; or
(4) default in the performance, or breach, of any covenant or warranty
of the Company in this Indenture or any Security of such series (other than
(i) a covenant or warranty for which the consequences of breach or
nonperformance are addressed (a) elsewhere in this Section 501 or (b) in
such Security or (ii) a covenant or warranty which has expressly been
included in this Indenture or a Security of a series, whether or not by
means of a supplemental indenture, solely for the benefit of Securities of
a series other than such series), and continuance of such default or breach
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 at least 33% in principal amount of the
Outstanding Securities of such series 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, 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
(5) the Company pursuant to or under or within the meaning of any
Bankruptcy Law:
(a) commences a voluntary case or proceeding;
(b) consents to the entry of an order for relief against it in an
involuntary case or proceeding or the commencement of any case against
it;
(c) consents to the appointment of a Custodian of it or for any
substantial part of its property;
(d) makes a general assignment for the benefit of its creditors;
(e) files a petition in bankruptcy or answer or consent seeking
reorganization or relief; or
(f) consents to the filing of such petition or the appointment of
or taking possession by a Custodian; or
(6) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
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(a) is for relief against the Company in an involuntary case or
proceeding, or adjudicates the Company insolvent or bankrupt;
(b) appoints a Custodian of the Company or for any substantial
part of its property; or
(c) orders the winding up or liquidation of the Company;
and the order or decree remains unstayed and in effect for 90 days; or
(7) any other Event of Default provided in or pursuant to this
Indenture with respect to Securities of such series.
"Bankruptcy Law" means Title 11, United States Code, or any similar Federal
or state law for the relief of debtors. "Custodian" means any receiver,
trustee, assignee, liquidator, custodian or similar official under any
Bankruptcy Law.
Section 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing, then the Trustee or the Holders of not
less than 33% in principal amount of the Outstanding Securities of such series
may declare the principal of all the Securities of such series, or such lesser
amount as may be provided for in the Securities of such series, to be due and
payable immediately, by a notice in writing to the Company (and to the Trustee
if given by the Holders), and upon any such declaration such principal or such
lesser amount shall become immediately due and payable.
At any time after Securities of any series have been accelerated and before
a judgment or decree for payment of the money due has been obtained by the
Trustee as hereinafter in this Article provided, the Holders of not less than a
majority in principal amount of the Outstanding Securities of such series, by
written notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum of money
sufficient to pay
(a) all overdue installments of any interest on any Securities of
such series and any Coupons appertaining thereto and any Additional
Amounts with respect thereto,
(b) the principal of and any premium on any Securities of such
series which have become due otherwise than by such declaration of
acceleration and any Additional Amounts with respect thereto and, to
the extent the payment of such interest is lawful, interest thereon at
the rate or rates borne by or provided for in such Securities,
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(c) to the extent that payment of such interest is lawful,
interest upon overdue installments of any interest and any Additional
Amounts with respect thereto at the rate or rates borne by or provided
for in such Securities, and
(d) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel and all other amounts due the Trustee
under Section 607; and
(2) all Events of Default with respect to Securities of such series,
other than the non-payment of the principal of, any premium and interest
on, and any Additional Amounts with respect to Securities of such series
which shall have become due solely by such declaration of acceleration,
shall have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if
(1) default is made in the payment of any installment of interest on
or any Additional Amounts payable in respect of any interest on, any
Security when such interest or Additional Amounts shall have become due and
payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of or any premium
on, or any Additional Amounts payable in respect of the principal of or any
premium on, any Security at its Maturity,
the Company shall, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities and any Coupons appertaining thereto,
the whole amount of money then due and payable with respect to such Securities
and any Coupons appertaining thereto, with interest upon the overdue principal,
any premium and, to the extent that payment of such interest shall be legally
enforceable, upon any overdue installments of interest and Additional Amounts at
the rate or rates borne by or provided for in such Securities, and, in addition
thereto, such further amount of money as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel and all other
amounts due to the Trustee under Section 607.
If the Company fails to pay the money it is required to pay the Trustee
pursuant to the preceding paragraph forthwith upon the demand of the Trustee,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the money so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Securities and any Coupons
appertaining thereto and collect the monies adjudged or decreed to be payable in
the manner provided by law out
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of the property of the Company or any other obligor upon such Securities and any
Coupons appertaining thereto, wherever situated.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series and any
Coupons appertaining thereto by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or such Securities or in aid of the exercise of any power granted
herein or therein, or to enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of any overdue principal, premium, interest or
Additional Amounts) shall be entitled and empowered, by intervention in such
proceeding or otherwise, to take any and all actions authorized under the Trust
Indenture Act in order to have claims of the Holders and the Trustee allowed in
any such proceeding. In particular, the Trustee shall be authorized
(1) to file and prove a claim for the whole amount, or such lesser
amount as may be provided for in the Securities of such series, of the
principal and any premium, interest and Additional Amounts owing and unpaid
in respect of the Securities and any Coupons appertaining thereto and to
file such other papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents or counsel) and of the Holders of Securities or any
Coupons allowed in such judicial proceeding, and
(2) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder of Securities or any Coupons 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 of Securities or any Coupons, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel and any other amounts due the
Trustee under Section 607.
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Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
or any Coupon any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or Coupons or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder of a
Security or any Coupon in any such proceeding; provided, however, that the
Trustee may, on behalf of the Holders, vote for the election of a trustee in
bankruptcy or similar official and be a member of a creditors' or other similar
committee.
Section 505. Trustee may Enforce Claims Without Possession of Securities
or Coupons.
All rights of action and claims under this Indenture or any of the
Securities or Coupons may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or Coupons or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery or judgment, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, shall be for the ratable benefit of each and every Holder of a
Security or Coupon in respect of which such judgment has been recovered.
Section 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal, or any
premium, interest or Additional Amounts, upon presentation of the Securities or
Coupons, or both, as the case may be, and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 607;
SECOND: To the payment of the amounts then due and unpaid upon the
Securities and any Coupons for principal and any premium, interest and
Additional Amounts in respect of which or for the benefit of which such
money has been collected, ratably, without preference or priority of any
kind, according to the aggregate amounts due and payable on such Securities
and Coupons for principal and any premium, interest and Additional Amounts,
respectively;
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
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Section 507. Limitation on Suits.
No Holder of any Security of any series or any Coupons appertaining thereto
shall have any right to institute any proceeding, judicial or otherwise, with
respect to this Indenture, or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of such
series;
(2) the Holders of not less than a majority in principal amount of the
Outstanding Securities of such series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of such series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture or any Security to affect, disturb or prejudice the rights of
any other such Holders or Holders of Securities of any other series, or to
obtain or to seek to obtain priority or preference over any other Holders or to
enforce any right under this Indenture, except in the manner herein provided and
for the equal and ratable benefit of all such Holders.
Section 508. Unconditional Right of Holders to Receive Principal and Any
Premium, Interest and Additional Amounts.
Notwithstanding any other provision in this Indenture, the Holder of any
Security or Coupon shall have the right, which is absolute and unconditional, to
receive payment of the principal of, any premium and (subject to Sections 305
and 307) interest on, and any Additional Amounts with respect to such Security
or such Coupon, as the case may be, on the respective Stated Maturity or
Maturities therefor specified in such Security or Coupon (or, in the case of
redemption, on the Redemption Date or, in the case of repayment at the option of
such Holder, on the Repayment Date) and to institute suit for the enforcement of
any such payment, and such right shall not be impaired without the consent of
such Holder.
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Section 509. Restoration of Rights and Remedies.
If the Trustee or any Holder of a Security or a Coupon has instituted any
proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case the Company, the Trustee and each such Holder shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of the
Trustee and each such Holder shall continue as though no such proceeding had
been instituted.
Section 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities or Coupons in the last paragraph
of Section 306, no right or remedy herein conferred upon or reserved to the
Trustee or to each and every Holder of a Security or a Coupon is intended to be
exclusive of any other right or remedy, and every right and remedy, to the
extent permitted by law, shall be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not, to the extent permitted by law, prevent the
concurrent assertion or employment of any other appropriate right or remedy.
Section 511. Delay or Omission not Waiver.
No delay or omission of the Trustee or of any Holder of any Security or
Coupon to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to any Holder of a Security or a Coupon may
be exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by such Holder, as the case may be.
Section 512. Control by Holders of Securities.
The Holders of a majority in principal amount of the Outstanding Securities
of any series 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 with respect to the Securities of
such series and any Coupons appertaining thereto, provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture or with the Securities of any series,
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction,
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(3) such direction is not unduly prejudicial to the rights of the
other Holders of Securities of such series not joining in such action, and
(4) subject to the provisions of Section 601, the Trustee shall have
the right to decline to follow any such direction if the Trustee in good
faith shall, by a Responsible Officer or Officers of the Trustee, determine
that the proceeding so directed would involve the Trustee in personal
liability.
Section 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series on behalf of the Holders of all the
Securities of such series and any Coupons appertaining thereto may waive any
past default hereunder with respect to such series and its consequences, except
a default
(1) in the payment of the principal of, any premium or interest on, or
any Additional Amounts with respect to, any Security of such series or any
Coupons appertaining thereto, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series 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.
Section 514. Waiver of Stay or Extension Laws.
The Company covenants that (to the extent that it may lawfully do so) it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company expressly waives (to the extent
that it may lawfully do so) all benefit or advantage of any such law and
covenants that it will not hinder, delay or impede the execution of any power
herein granted to the Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
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Section 515. Undertaking for Costs.
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 any
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
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 515 shall not apply to any suit instituted by the Trustee, to
any suit instituted by any Holder, or group of Holders, holding in the aggregate
more than 10% in principal amount of Outstanding Securities of any series, or to
any suit instituted by any Holder for the enforcement of the payment of the
principal of (or premium, if any) or interest, if any, on or Additional Amounts,
if any, with respect to any Security on or after the respective Stated
Maturities expressed in such Security (or, in the case of redemption, on or
after the Redemption Date, and, in the case of repayment, on or after the
Repayment Date) or for the enforcement of the right, if any, to convert or
exchange any Security into Capital Stock or other securities in accordance with
its terms.
ARTICLE SIX
THE TRUSTEE
Section 601. Certain Duties and Responsibilities of Trustee.
The duties and responsibilities of the Trustee shall be as provided by the
Trust Indenture Act. Notwithstanding the foregoing, no provision of 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 it 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 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.
Section 602. Certain Rights of Trustee.
Subject to Sections 315(a) through 315(d) of the Trust Indenture Act and
the provisions of Section 601 hereof:
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon or other paper or document reasonably
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
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(2) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or a Company Order and any
resolution of the Company or the Board of Directors may be sufficiently
evidenced by a Company Resolution;
(3) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence shall be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by or pursuant to this Indenture at the
request or direction of any of the Holders of Securities of any series or
any Coupons appertaining thereto pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by it
in compliance with such request or direction;
(6) 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,
bond, debenture, coupon or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall determine to make
such further inquiry or investigation, it shall be entitled to examine,
during business hours and upon reasonable notice, the books, records and
premises of the Company, personally or by agent or attorney;
(7) 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 with due care by
it hereunder; and
(8) no provision of 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 it 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.
Section 603. Notice of Defaults.
If a default occurs hereunder with respect to Securities of any series, the
Trustee shall give the Holders of Securities of such series notice of such
default as and to the extent provided by the Trust Indenture Act, provided that
in the case of any default of the character specified in Section
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501(4) with respect to Securities of such series, no such notice to Holders
shall be given until at least 30 days after the occurrence thereof. For the
purpose of this Section, the term "Default" means any event which is, or after
notice or lapse of time or both would become, an Event of Default with respect
to Securities of such series.
Section 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificate of authentication, and in any Coupons shall be taken as the
statements of the Company and neither the Trustee nor any Authenticating Agent
assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or the Coupons, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform its obligations hereunder and that the statements made by it in a
Statement of Eligibility on Form T-1 supplied to the Company are true and
accurate, subject to the qualifications set forth therein. Neither the Trustee
nor any Authenticating Agent shall be accountable for the use or application by
the Company of the Securities or the proceeds thereof.
Section 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other Person that may be an agent of the Trustee or the
Company, in its individual or any other capacity, may become the owner or
pledgee of Securities or Coupons and, subject to Sections 310(b) and 311 of the
Trust Indenture Act, may otherwise deal with the Company with the same rights it
would have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other Person.
Section 606. Money Held in Trust.
Except as provided in Section 403 and Section 1003, money held by the
Trustee in trust hereunder need not be segregated from other funds except to the
extent required by law and shall be held uninvested. The Trustee shall be under
no liability for interest on any money received by it hereunder except as
otherwise agreed in writing with the Company.
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Section 607. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time such compensation as shall
be agreed to in writing between the Company and the Trustee for all
services rendered by the Trustee hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (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 the Trustee's negligence
or bad faith; and
(3) to indemnify the Trustee and its agents for, and to hold them
harmless against, any loss, liability or expense incurred without
negligence or bad faith on their 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 themselves against any claim
or liability in connection with the exercise or performance of any of their
powers or duties hereunder, except to the extent that any such loss,
liability or expense was due to the Trustee's negligence or bad faith.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a lien prior to the Securities of any
series upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of, and premium or
interest on or any Additional Amounts with respect to particular Securities or
any Coupons appertaining thereto.
Without limiting any rights available to the Trustee under applicable law,
any compensation or expense incurred by the Trustee after a default specified by
Section 501(5) or (6) is intended to constitute an expense of administration
under any then applicable bankruptcy or insolvency law. "Trustee" for purposes
of this Section 607 shall include any predecessor Trustee but the negligence or
bad faith of any Trustee shall not affect the rights of any other Trustee under
this Section 607.
Section 608. Corporate Trustee Required; Eligibility.
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 Section 310(a)(1) 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
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(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.
Section 609. Resignation and Removal; Appointment of Successor.
(1) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee pursuant to Section 610.
(2) The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 610 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to such
series.
(3) The Trustee may be removed at any time with respect to the Securities
of any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and the Company.
(4) If at any time:
(a) the Trustee shall fail to comply with the obligations imposed upon
it under Section 310(b) of the Trust Indenture Act (subject to the
penultimate paragraph thereof) with respect to Securities of any series
after written request therefor by the Company or any Holder of a Security
of such series who has been a bona fide Holder of a Security of such series
for at least six months, or
(b) the Trustee shall cease to be eligible under Section 608 and shall
fail to resign after written request therefor by the Company or any such
Holder, or
(c) 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, (i) the Company, by or pursuant to a Company Resolution,
may remove the Trustee with respect to all Securities or the Securities of such
series, or (ii) subject to Section 315(e) of the Trust Indenture Act, any Holder
of a Security who has been a bona fide Holder of a Security of such 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 with
respect to all Securities of such series and the appointment of a successor
Trustee or Trustees.
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(5) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, with respect
to the Securities of one or more series, the Company, by or pursuant to a
Company Resolution, shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the Securities of one or
more or all of such series and that at any time there shall be only one Trustee
with respect to the Securities of any particular series) and shall comply with
the applicable requirements of Section 610. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
610, become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders of Securities and accepted
appointment in the manner required by Section 610, any Holder of a Security who
has been a bona fide Holder of a Security of such series 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 with
respect to the Securities of such series.
(6) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series by mailing
written notice of such event by first-class mail, postage prepaid, to the
Holders of Registered Securities, if any, of such series as their names and
addresses appear in the Security Register and, if Securities of such series are
issued as Bearer Securities, by publishing notice of such event once in an
Authorized Newspaper in each Place of Payment located outside the United States.
Each notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
Section 610. Acceptance of Appointment by Successor.
(1) Upon the appointment hereunder of any successor Trustee with respect to
all Securities, such successor Trustee so appointed shall execute, acknowledge
and deliver to the Company and the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
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 hereunder of the retiring Trustee; but, on the request of the Company or
such successor Trustee, such retiring Trustee, upon payment of its charges,
shall execute and deliver an instrument transferring to such successor Trustee
all the rights, powers and trusts of the retiring Trustee and, subject to
Section 1003, shall duly assign, transfer and deliver to such successor Trustee
all property and money held by such retiring Trustee hereunder, subject
nevertheless to its lien, if any, provided for in Section 607.
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(2) Upon the appointment hereunder of any successor Trustee with respect to
the Securities of one or more (but not all) series, the Company, the retiring
Trustee and such successor Trustee 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, such successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those 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 that or those 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, 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 that no Trustee shall be responsible
for any notice given to, or received by, or any act or failure to act on the
part of any other Trustee hereunder, 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, such retiring Trustee
shall have no further responsibility for the exercise of rights and powers or
for the performance of the duties and obligations vested in the Trustee under
this Indenture with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates other than as hereinafter
expressly set forth, and 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 that or those
series to which the appointment of such successor Trustee relates; but, on
request of the Company or such successor Trustee, such retiring Trustee, upon
payment of its charges with respect to the Securities of that or those series to
which the appointment of such successor relates and subject to Section 1003
shall duly assign, transfer and deliver to such successor Trustee, to the extent
contemplated by such supplemental indenture, the property and money held by such
retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates, subject to
its lien, if any, provided for in Section 607.
(3) Upon request of any Person appointed hereunder as a successor Trustee,
the Company 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 paragraph (1) or (2) of this Section, as the case may be.
(4) No Person shall accept its appointment hereunder as a successor Trustee
unless at the time of such acceptance such successor Person shall be qualified
under the Trust Indenture Act and eligible under this Article.
Section 611. Merger, Conversion, Consolidation or Succession to Business.
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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,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated
but not delivered by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
Section 612. Appointment of Authenticating Agent.
The Trustee may appoint one or more Authenticating Agents acceptable to the
Company with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of that or
those series issued upon original issue, exchange, registration of transfer,
partial redemption or partial repayment, or pursuant to Section 306, and
Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and 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 be acceptable to the Company and, except as
provided in or pursuant to this Indenture, shall at all times be a corporation
that would be permitted by the Trust Indenture Act to act as trustee under an
indenture qualified under the Trust Indenture Act, is authorized under
applicable law and by its charter to act as an Authenticating Agent and 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 and subject to supervision or
examination by Federal or State authority. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such Authenticating Agent
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 specified in this
Section.
Any Corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any Corporation succeeding to all or substantially all of
the corporate agency or corporate trust business of an Authenticating Agent,
shall be the successor of such Authenticating Agent hereunder, provided such
Corporation shall be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
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An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall (i) mail written notice
of such appointment by first-class mail, postage prepaid, to all Holders of
Registered Securities, if any, of the series with respect to which such
Authenticating Agent shall serve, as their names and addresses appear in the
Security Register, and (ii) if Securities of the series are issued as Bearer
Securities, publish notice of such appointment at least once in an Authorized
Newspaper in the place where such successor Authenticating Agent has its
principal office if such office is located outside the United States. 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.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company agrees to pay each Authenticating Agent from time to time
reasonable compensation for its services under this Section. If the Trustee
makes such payments, it shall be entitled to be reimbursed for such payments,
subject to the provisions of Section 607.
The provisions of Sections 308, 604 and 605 shall be applicable to each
Authenticating Agent.
If an Authenticating Agent is appointed with respect to one or more series
of Securities pursuant to this Section, the Securities of such series may have
endorsed thereon, in addition to or in lieu of the Trustee's certificate of
authentication, an alternate certificate of authentication in substantially the
following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
[Date] THE CHASE MANHATTAN BANK,
As Trustee
By
--------------------------------------------------
As Authenticating Agent
By
--------------------------------------------------
Authorized Signatory
If all of the Securities of any series may not be originally issued at one
time, and if the Trustee does not have an office capable of authenticating
Securities upon original issuance located
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in a Place of Payment where the Company wishes to have Securities of such series
authenticated upon original issuance, the Trustee, if so requested in writing
(which writing need not be accompanied by or contained in an Officers'
Certificate by the Company), shall appoint in accordance with this Section and
such procedures as shall be acceptable to the Trustee an Authenticating Agent
having an office in a Place of Payment designated by the Company with respect to
such series of Securities.
Section 613. [Conflicting Interests].
[If the Trustee has or shall acquire a 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. To the extent
permitted by such Act, the Trustee shall not be deemed to have a conflicting
interest by virtue of being a trustee under this Indenture with respect to
Securities of more than one series, [LIST OUT OTHER COMPANY DOCUMENTS PURSUANT
TO WHICH CHASE SERVES AS TRUSTEE].]
Section 614. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company (or
any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names and Addresses of Holders.
In accordance with Section 312(a) of the Trust Indenture Act, the Company
shall furnish or cause to be furnished to the Trustee
(1) semi-annually with respect to Securities of each series not later than
August 1 and February 1 of each year or upon such other dates as are set forth
in or pursuant to the Company Resolution or indenture supplemental hereto
authorizing such series, a list, in each case in such form as the Trustee may
reasonably require, of the names and addresses of Holders as of the preceding
July 15 and January 15, as the case may be, and
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(2) at such other times as the Trustee may request in writing, within 30
days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished, provided, however, that so long as the Trustee is the Security
Registrar no such list shall be required to be furnished.
Section 702. Preservation of Information; Communications to Holders.
The Trustee shall comply with the obligations imposed upon it pursuant to
Section 312 of the Trust Indenture Act. The Trustee shall preserve, in as
current a form as is reasonably practicable, the names and addresses of Holders
contained in the most recent list furnished to the Trustee as provided in
Section 701 and the names and addresses of Holders received by the Trustee in
its capacity as Security Registrar. The Trustee may destroy any list furnished
to it as provided in Section 701 upon receipt of a new list so furnished.
The rights of Holders to communicate with other Holders with respect to
their rights under this Indenture or under the Securities, and the corresponding
rights and privileges of the Trustee, shall be as provided by the Trust
Indenture Act.
Every Holder of Securities or Coupons, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company, the Trustee,
any Paying Agent or any Security 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.
Section 703. Reports by Trustee.
(1) Within 60 days after July 15 of each year commencing with the first
July 15 following the first issuance of Securities pursuant to Section 301, if
required by Section 313(a) of the Trust Indenture Act, the Trustee shall
transmit, pursuant to Section 313(c) of the Trust Indenture Act, a brief report
dated as of such July 15 with respect to any of the events specified in said
Section 313(a) which may have occurred since the later of the immediately
preceding July 15 and the date of this Indenture.
(2) The Trustee shall transmit the reports required by Section 313(a) of
the Trust Indenture Act at the times specified therein.
(3) Reports pursuant to this Section shall be transmitted in the manner and
to the Persons required by Sections 313(c) and 313(d) of the Trust Indenture
Act. The Company will notify the Trustee when any Securities are listed on any
stock exchange.
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Section 704. Reports by Company.
The Company, pursuant to Section 314(a) of the Trust Indenture Act, shall:
(1) file with the Trustee, within 15 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 Securities Exchange Act of 1934;
or, if the Company is not required to file information, documents or reports
pursuant to either of said Sections, then it shall 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
Securities Exchange Act of 1934 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;
(2) file with the Trustee and the Commission, in accordance with 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 of this Indenture as may be required from time
to time by such rules and regulations; and
(3) transmit within 30 days after the filing thereof with the Trustee, in
the manner and to the extent provided in Section 313(c) of the Trust Indenture
Act, such summaries of any information, documents and reports required to be
filed by the Company pursuant to paragraphs (1) and (2) of this Section as may
be required by rules and regulations prescribed from time to time by the
Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
Section 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other corporation
or convey or transfer its properties and assets substantially as an entirety to
any Person, and no Person shall consolidate with or merge into the Company or
convey or transfer its properties and assets substantially as an entirety to the
Company, unless:
(1) in case the Company shall consolidate with or merge into another
corporation or convey or transfer its properties and assets substantially
as an entirety to any Person, the corporation formed by such consolidation
or into which the Company is merged or the Person which acquires by
conveyance or transfer the properties and assets of the Company
substantially as an entirety shall be a corporation organized and existing
under the laws of
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any domestic or foreign jurisdiction, and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee, in
form satisfactory to the Trustee, the due and punctual payment of the
principal of and any premium and interest on all the Securities and the
performance of every covenant of this Indenture on the part of the Company
to be performed or observed;
(2) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time, or both, would
become an Event of Default, shall have happened and be continuing; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that such consolidation, merger,
conveyance or transfer and such supplemental indenture, if any, comply with
this Article and that all conditions precedent herein provided for relating
to such transaction have been complied with.
Section 802. Successor Person Substituted for Company.
Upon any consolidation or merger by the Company with or into any other
corporation, or any conveyance or transfer by the Company of its properties and
assets substantially as an entirety to any Person in accordance with Section
801, the successor corporation formed by such consolidation or into which the
Company is merged or to which such conveyance or transfer is made shall succeed
to, and be substituted for, and may exercise every right and power of, the
Company under this Indenture with the same effect as if such successor
corporation had been named as the Company herein; and in the event of any such
conveyance or transfer, the Company (which term shall for this purpose mean the
Person named as the "Company" in the first paragraph of this Indenture or any
successor corporation which shall theretofore become such in the manner
described in Section 801) shall be discharged from all obligations and covenants
under this Indenture, the Securities and the Coupons and may be dissolved and
liquidated.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders of Securities or Coupons, the Company
(when authorized by or pursuant to a Company Resolution) and the Trustee, at any
time and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
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(1) to evidence the succession of another Person to the Company, and
the assumption by any such successor of the covenants of the Company
contained herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (as shall be specified in such
supplemental indenture or indentures) or to surrender any right or power
herein conferred upon the Company; or
(3) to add to or change any of the provisions of this Indenture to
provide that Bearer Securities may be registrable as to principal, to
change or eliminate any restrictions on the payment of principal of, any
premium or interest on or any Additional Amounts with respect to
Securities, to permit Bearer Securities to be issued in exchange for
Registered Securities, to permit Bearer Securities to be exchanged for
Bearer Securities of other authorized denominations or to permit or
facilitate the issuance of Securities in uncertificated form, provided any
such action shall not adversely affect the interests of the Holders of
Securities of any series or any Coupons appertaining thereto in any
material respect; or
(4) to establish the form or terms of Securities of any series and any
Coupons appertaining thereto as permitted by Sections 201 and 301; or
(5) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to 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, pursuant to the requirements
of Section 610; or
(6) to cure any ambiguity or to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture; provided, that, no such action
shall adversely affect the interests of the Holders of Securities of any
series then Outstanding or any Coupons appertaining thereto in any material
respect; or
(7) to add to, delete from or revise the conditions, limitations and
restrictions on the authorized amount, terms or purposes of issue,
authentication and delivery of Securities, as herein set forth; or
(8) to add any additional Events of Default with respect to all or any
series of Securities (as shall be specified in such supplemental
indenture); or
(9) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Article Four, provided
that any such action shall not adversely affect the interests of any Holder
of a Security of such series and any Coupons appertaining thereto or any
other Security or Coupon in any material respect; or
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(10) to secure the Securities pursuant to Section 1006 or otherwise;
or
(11) to make provisions with respect to conversion or exchange rights
of Holders of Securities of any series; or
(12) to amend or supplement any provision contained herein or in any
supplemental indenture (which amendment or supplement may apply to one or
more series of Securities or to one or more Securities within any series as
specified in such supplemental indenture or indentures), provided that such
amendment or supplement does not apply to any Outstanding Security issued
prior to the date of such supplemental indenture and entitled to the
benefits of such provision.
Section 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company (when authorized by or pursuant to a Company Resolution),
and the Trustee may enter into an indenture or indentures supplemental hereto
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of the Securities of such
series or of modifying in any manner the rights of the Holders of Securities of
such series under this Indenture; provided, however, that no such supplemental
indenture, without the consent of the Holder of each Outstanding Security
affected thereby, shall
(1) change the Stated Maturity of the principal of, or any premium or
installment of interest on or any Additional Amounts with respect to, any
Security, or reduce the principal amount thereof or the rate (or modify the
calculation of such rate) of interest thereon or any Additional Amounts
with respect thereto, or any premium payable upon the redemption or
repayment thereof or otherwise, or change the obligation of the Company to
pay Additional Amounts pursuant to Section 1004, or reduce the amount of
the principal of an Original Issue Discount Security that would be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant
to Section 502 or the amount thereof provable in bankruptcy pursuant to
Section 504, adversely affect the right of repayment at the option of any
Holder as contemplated by Article Thirteen, or change the Place of Payment,
Currency in which the principal of, any premium or interest on, or any
Additional Amounts with respect to any Security is payable, or impair the
right to institute suit for the enforcement of any such payment on or after
the Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date or, in the case of repayment at the option of the Holder,
on or after the Repayment Date), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver of certain defaults hereunder and their
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consequences provided for in this Indenture, or reduce the requirements of
Section 1504 for quorum or voting, or
(3) modify any of the provisions of this Section or Section 513,
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 Holder of each Outstanding Security affected thereby;
provided, however, that this clause shall not be deemed to require the
consent of any Holder with respect to changes in the references to "the
Trustee" and concomitant changes in this Section, or the deletion of this
proviso, in accordance with the requirements of Sections 610 and 901(5), or
(4) make any change that adversely affects the right to convert or
exchange any Security for Capital Stock or other securities in accordance
with its terms.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which shall have been included expressly and solely
for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of 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 of any other series.
It shall not be necessary for any Act of Holders of Securities under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
Section 903. Execution of Supplemental Indentures.
As a condition to executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trust created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 315 of the Trust Indenture Act) shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but 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.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of a Security theretofore or thereafter authenticated and delivered hereunder
and of any Coupon appertaining thereto shall be bound thereby.
Section 905. Reference in Securities to Supplemental Indentures.
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Securities of any series authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
Section 906. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Any Premium, Interest and
Additional Amounts.
The Company covenants and agrees for the benefit of the Holders of the
Securities of each series that it will duly and punctually pay the principal of,
any premium and interest on and any Additional Amounts with respect to the
Securities of such series in accordance with the terms thereof, any Coupons
appertaining thereto and this Indenture. Any interest due on any Bearer
Security on or before the Maturity thereof, and any Additional Amounts payable
with respect to such interest, shall be payable only upon presentation and
surrender of the Coupons appertaining thereto for such interest as they
severally mature.
Section 1002. Maintenance of Office or Agency.
The Company shall maintain in each Place of Payment for any series of
Securities an Office or Agency where Securities of such series (but not Bearer
Securities, except as otherwise provided below, unless such Place of Payment is
located outside the United States) may be presented or surrendered for payment,
where Securities of such series may be surrendered for registration of transfer
or exchange, where Securities of such series that are convertible or
exchangeable may be surrendered for conversion or exchange, and where notices
and demands to or upon the Company in respect of the Securities of such series
relating thereto and this Indenture may be served. If Securities of a series
are issuable as Bearer Securities, the Company shall maintain, subject to any
laws or regulations applicable thereto, an Office or Agency in a Place of
Payment for such series which is located outside the United States where
Securities of such series and any Coupons appertaining thereto may be presented
and surrendered for payment; provided, however, that if the
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Securities of such series are listed on The Stock Exchange of the United Kingdom
and the Republic of Ireland or the Luxembourg Stock Exchange or any other stock
exchange located outside the United States and such stock exchange shall so
require, the Company shall maintain a Paying Agent in London, Luxembourg or any
other required city located outside the United States, as the case may be, so
long as the Securities of such series are listed on such exchange. The Company
will give prompt written notice to the Trustee of the location, and any change
in the location, of such Office or Agency. If at any time the Company shall fail
to maintain any such required Office or Agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the Trustee,
except that Bearer Securities of such series and any Coupons appertaining
thereto may be presented and surrendered for payment at the place specified for
the purpose with respect to such Securities as provided in or pursuant to this
Indenture, and the Company hereby appoints the Trustee as its agent to receive
all such presentations, surrenders, notices and demands.
Except as otherwise provided in or pursuant to this Indenture, no payment
of principal, premium, interest or Additional Amounts with respect to Bearer
Securities shall be made at any Office or Agency in the United States or by
check mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States; provided, however, if
amounts owing with respect to any Bearer Securities shall be payable in Dollars,
payment of principal of, any premium or interest on and any Additional Amounts
with respect to any such Security may be made at the Corporate Trust Office of
the Trustee or any Office or Agency designated by the Company in the Borough of
Manhattan, The City of New York, if (but only if) payment of the full amount of
such principal, premium, interest or Additional Amounts at all offices outside
the United States maintained for such purpose by the Company in accordance with
this Indenture is illegal or effectively precluded by exchange controls or other
similar restrictions.
The Company may also from time to time designate one or more other Offices
or Agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an Office or Agency
in each Place of Payment for Securities of any series for such purposes. The
Company shall give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other Office or
Agency. Unless otherwise provided in or pursuant to this Indenture, the Company
hereby designates as the Place of Payment for each series of Securities the
Borough of Manhattan, The City of New York, and initially appoints the Corporate
Trust Office of the Trustee as the Company's Office or Agency in the Borough of
Manhattan, The City of New York for such purpose. The Company may subsequently
appoint a different Office or Agency in the Borough of Manhattan, The City of
New York for the Securities of any series.
Section 1003. Money for Securities Payments to be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect
to any series of Securities, it shall, on or before each due date of the
principal of, any premium or interest on or Additional Amounts with respect to
any of the Securities of such series, segregate and hold in trust
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for the benefit of the Persons entitled thereto a sum in the Currency or
Currencies in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such series)
sufficient to pay the principal or any premium, interest or Additional Amounts
so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided, and shall promptly notify the Trustee of its
action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of
Securities, it shall, on or prior to each due date of the principal of, any
premium or interest on or any Additional Amounts with respect to any Securities
of such series, deposit with any Paying Agent a sum (in the Currency or
Currencies described in the preceding paragraph) sufficient to pay the principal
or any premium, interest or Additional Amounts so becoming due, such sum to be
held in trust for the benefit of the Persons entitled thereto, and (unless such
Paying Agent is the Trustee) the Company will promptly notify the Trustee of its
action or failure so to act.
The Company shall cause each Paying Agent for any series of Securities
other than the Trustee 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, that such Paying Agent shall:
(1) hold all sums held by it for the payment of the principal of, any
premium or interest on or any Additional Amounts with respect to Securities
of such series in trust for the benefit of the Persons entitled thereto
until such sums shall be paid to such Persons or otherwise disposed of as
provided in or pursuant to this Indenture;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of such series) in the making of any
payment of principal, any premium or interest on or any Additional Amounts
with respect to the Securities of such series; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same terms as those upon which such sums were held by the Company or such Paying
Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with respect to such sums.
Except as otherwise provided herein or pursuant hereto, any money deposited
with the Trustee or any Paying Agent, or then held by the Company, in trust for
the payment of the principal of, any premium or interest on or any Additional
Amounts with respect to any Security of any series or any Coupon appertaining
thereto and remaining unclaimed for two years after such principal or any such
premium or interest or any such Additional Amounts shall have become due and
payable shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security or
any Coupon appertaining thereto shall
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thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; 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, in an Authorized Newspaper in
each Place of Payment for such series or to be mailed to Holders of Registered
Securities of such series, or both, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such publication or mailing nor shall it be later than two years
after such principal and any premium or interest or Additional Amounts shall
have become due and payable, any unclaimed balance of such money then remaining
will be repaid to the Company.
Section 1004. Additional Amounts.
If any Securities of a series provide for the payment of Additional
Amounts, the Company agrees to pay to the Holder of any such Security or any
Coupon appertaining thereto Additional Amounts as provided in or pursuant to
this Indenture or such Securities. Whenever in this Indenture there is
mentioned, in any context, the payment of the principal of or any premium or
interest on, or in respect of, any Security of any series or any Coupon or the
net proceeds received on the sale or exchange of any Security of any series,
such mention shall be deemed to include mention of the payment of Additional
Amounts provided by the terms of such series established hereby or pursuant
hereto to the extent that, in such context, Additional Amounts are, were or
would be payable in respect thereof pursuant to such terms, and express mention
of the payment of Additional Amounts (if applicable) in any provision hereof
shall not be construed as excluding Additional Amounts in those provisions
hereof where such express mention is not made.
Except as otherwise provided in or pursuant to this Indenture or the
Securities of any series, if the Securities of a series provide for the payment
of Additional Amounts, at least 10 days prior to the first Interest Payment Date
with respect to such series of Securities (or if the Securities of such series
shall not bear interest prior to Maturity, the first day on which a payment of
principal is made), and at least 10 days prior to each date of payment of
principal or interest if there has been any change with respect to the matters
set forth in the below-mentioned Officers' Certificate, the Company shall
furnish to the Trustee and the principal Paying Agent or Paying Agents, if other
than the Trustee, an Officers' Certificate instructing the Trustee and such
Paying Agent or Paying Agents whether such payment of principal of and premium,
if any, or interest, if any, on the Securities of such series shall be made to
Holders of Securities of such series or the Coupons appertaining thereto who are
United States Aliens without withholding for or on account of any tax,
assessment or other governmental charge described in the Securities of such
series. If any such withholding shall be required, then such Officers'
Certificate shall specify by country the amount, if any, required to be withheld
on such payments to such Holders of Securities or Coupons, and the Company
agrees to pay to the Trustee or such Paying Agent the Additional Amounts
required by the terms of such Securities. The Company covenants to indemnify
the Trustee and any Paying Agent for, and to hold them harmless against, any
loss, liability or expense reasonably incurred without negligence or bad faith
on their part arising out of or in connection with actions taken or omitted by
any of them in reliance on any Officers' Certificate furnished pursuant to this
Section.
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Section 1005. Corporate Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and the rights (charter and statutory) and franchises of the Company;
provided, however, that the Company shall not be required to preserve any such
right or franchise if the Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company, and that the loss thereof is not disadvantageous in any material
respect to the Holders.
Section 1006. Company Statement as to Compliance.
The Company will deliver to the Trustee, within 120 days after the end of
each fiscal year, an Officers' Certificate (which need not comply with Section
102), stating as to each signer, that
(1) a review of the activities of the Company during such year and of
performance under this Indenture has been made under his or her
supervision; and
(2) to the best of his or her knowledge, based on such review, (a) the
Company has fulfilled all its obligations under and complied with all
covenants and conditions contained in this Indenture throughout such year,
or, if there has been a default in the fulfillment of any such covenant,
condition or obligation, specifying each such default known to him or her
and the nature and status thereof, and (b) no event has occurred and is
continuing which is, or after notice or lapse of time or both would become,
an Event of Default under Section 501, or, if such an event has occurred
and is continuing, specifying each such event known to him or her and the
nature and status thereof.
At least one of the Person's signing such Officers' Certificate shall be the
Company's principal executive officer, principal financial officer or principal
accounting officer.
Section 1007. Calculation of Original Issue Discount.
The Company shall file with the Trustee promptly after the end of each
calendar year a written notice specifying the amount of original issue discount
(including daily rates and accrual periods) accrued on Outstanding Securities,
if any, as of the end of such year.
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ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article.
Redemption of Securities of any series at the option of the Company as
permitted or required by the terms of such Securities shall be made in
accordance with the terms of such Securities and (except as otherwise provided
herein or pursuant hereto) this Article.
Section 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by
or pursuant to a Company Resolution. In case of any redemption at the election
of the Company of less than all of the Securities of any series, the Company
shall, at least 60 days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee of such Redemption Date and of the principal amount of Securities of
such series to be redeemed and, in the event that the Company shall determine
that the Securities of any series to be redeemed shall be selected from
Securities of such series having the same issue date, interest rate or interest
rate formula, Stated Maturity and other terms (the "Equivalent Terms"), the
Company shall notify the Trustee of such Equivalent Terms. In the case of any
redemption of Securities (a) prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture or (b) pursuant to an election of the Company which is subject to a
condition specified in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction or condition.
Section 1103. Selection by Trustee of Securities to be Redeemed.
If less than all of the Securities of any series are to be redeemed (unless
all of the Securities of any series with Equivalent Terms are to be redeemed) or
if less than all of the Securities of any series with Equivalent Terms are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee from the Outstanding
Securities of such series or from the Outstanding Securities of such series with
Equivalent Terms, as the case may be, not previously called for redemption, by
such method as the Trustee shall deem fair and appropriate and which may provide
for the selection for redemption of portions of the principal amount of
Registered Securities of such series; provided, however, that no such partial
redemption shall reduce the portion of the principal amount of a Registered
Security of such series not redeemed to less than the minimum denomination for a
Security of such series established herein or pursuant hereto.
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The Trustee shall promptly notify the Company and the Security Registrar
(if other than itself) in writing of the Securities selected for redemption and,
in the case of any Securities selected for partial redemption, the principal
amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
Unless otherwise specified in or pursuant to this Indenture or the
Securities of any series, if any Security selected for partial redemption is
converted or exchanged for Capital Stock or other securities in part before
termination of the conversion or exchange right with respect to the portion of
the Security so selected, the converted or exchanged portion of such Security
shall be deemed (so far as may be) to be the portion selected for redemption.
Securities which have been converted or exchanged during a selection of
Securities to be redeemed shall be treated by the Trustee as Outstanding for the
purpose of such selection.
Section 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section 106,
not less than 20 nor more than 60 days prior to the Redemption Date, unless a
shorter period is specified in the Securities to be redeemed, to the Holders of
Securities to be redeemed. Failure to give notice by mailing in the manner
herein provided to the Holder of any Registered Securities designated for
redemption as a whole or in part, or any defect in the notice to any such
Holder, shall not affect the validity of the proceedings for the redemption of
any other Securities or portion thereof. Any notice that is mailed to the
Holder of any Registered Securities in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not such Holder
receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price, or if not then ascertainable, the manner of
calculation thereof,
(3) if less than all Outstanding Securities of any series are to be
redeemed (unless all of the Securities of any series with Equivalent Terms
are to be redeemed), the identification (and, in the case of partial
redemption, the principal amount) of the particular Security or Securities
to be redeemed,
(4) in case any Security is to be redeemed in part only, the notice
which relates to such Security shall state that on and after the Redemption
Date, upon surrender of such Security, the Holder of such Security will
receive, without charge, a new Security or
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Securities of authorized denominations for the principal amount thereof
remaining unredeemed,
(5) that, on the Redemption Date, the Redemption Price shall become
due and payable upon each such Security or portion thereof to be redeemed,
and, if applicable, that interest thereon shall cease to accrue on and
after said date,
(6) the place or places where such Securities, together (in the case
of Bearer Securities) with all Coupons appertaining thereto, if any,
maturing after the Redemption Date, are to be surrendered for payment of
the Redemption Price and any accrued interest and Additional Amounts
pertaining thereto,
(7) that the redemption is for a sinking fund, if such is the case,
(8) that, unless otherwise specified in such notice, Bearer Securities
of any series, if any, surrendered for redemption must be accompanied by
all Coupons maturing subsequent to the date fixed for redemption or the
amount of any such missing Coupon or Coupons will be deducted from the
Redemption Price, unless security or indemnity satisfactory to the Company,
the Trustee and any Paying Agent is furnished,
(9) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if such
Bearer Securities may be exchanged for Registered Securities not subject to
redemption on the Redemption Date pursuant to Section 305 or otherwise, the
last date, as determined by the Company, on which such exchanges may be
made,
(10) in the case of Securities of any series that are convertible or
exchangeable into Capital Stock or other securities, the conversion or
exchange price or rate, the date or dates on which the right to convert or
exchange the principal of the Securities of such series to be redeemed will
commence or terminate and the place or places where such Securities may be
surrendered for conversion or exchange, and
(11) the CUSIP number or the Euroclear or the Cedel reference numbers
of such Securities, if any (or any other numbers used by a U.S. Depositary
or Depositary to identify such Securities).
A notice of redemption published as contemplated by Section 106 need not
identify particular Registered Securities to be redeemed.
Unless otherwise specified with respect to any Securities in accordance
with Section 301, with respect to any redemption of Securities at the election
of the Company, unless, upon the giving of notice of such redemption, defeasance
shall have been effected with respect to such Securities pursuant to Section
402, such notice may state that such redemption shall be conditional upon the
receipt by the Trustee or the Paying Agent(s) for such Securities, on or prior
to the date fixed for such redemption, of money sufficient to pay the principal
of and any premium and interest on such
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Securities and that if such money shall not have been so received such notice
shall be of no force or effect and the Company shall not be required to redeem
such Securities. In the event that such notice of redemption contains such a
condition and such money is not so received, the redemption shall not be made
and within a reasonable time thereafter notice shall be given, in the manner in
which the notice of redemption was given, that such money was not so received
and such redemption was not required to be made, and the Trustee or Paying
Agent(s) for the Securities otherwise to have been redeemed shall promptly
return to the Holders thereof any of such Securities which had been surrendered
for payment upon such redemption.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, on Company Request, by the Trustee in
the name and at the expense of the Company.
The Company shall give the Trustee notice of the amount of any Redemption
Price that is subject to calculation, promptly after the calculation thereof.
Section 1105. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit, with respect
to the Securities of any series called for redemption pursuant to Section 1104,
with the Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 1003) an amount
of money in the applicable Currency sufficient to pay the Redemption Price of,
and (except if the Redemption Date shall be an Interest Payment Date, unless
otherwise specified pursuant to Section 301 for or in the Securities of such
series) any accrued interest on and Additional Amounts with respect thereto, all
such Securities or portions thereof which are to be redeemed on that date.
Section 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, subject to the fourth paragraph of Section
1104, and from and after such date (unless the Company shall default in the
payment of the Redemption Price and accrued interest) such Securities shall
cease to bear interest and the Coupons for such interest appertaining to any
Bearer Securities so to be redeemed, except to the extent provided below, shall
be void. Upon surrender of any such Security for redemption in accordance with
said notice, together with all Coupons, if any, appertaining thereto maturing
after the Redemption Date, such Security shall be paid by the Company at the
Redemption Price, together with any accrued interest and Additional Amounts to
the Redemption Date; provided, however, that, except as otherwise provided in or
pursuant to this Indenture or the Bearer Securities of such series, installments
of interest on Bearer Securities whose Stated Maturity is on or prior to the
Redemption Date shall be payable only upon presentation and surrender of Coupons
for such interest (at an Office or Agency located outside the United States
except as otherwise provided in Section 1002), and provided, further, that,
except as otherwise specified in or pursuant to this
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Indenture or the Registered Securities of such series, installments of interest
on Registered Securities whose Stated Maturity is on or prior to the Redemption
Date shall be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of business on the
Regular Record Dates therefor according to their terms and the provisions of
Section 307.
If any Bearer Security surrendered for redemption shall not be accompanied
by all appurtenant Coupons maturing after the Redemption Date, such Security may
be paid after deducting from the Redemption Price an amount equal to the face
amount of all such missing Coupons, or the surrender of such missing Coupon or
Coupons may be waived by the Company and the Trustee if there be furnished to
them such security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Security shall
surrender to the Trustee or any Paying Agent any such missing Coupon in respect
of which a deduction shall have been made from the Redemption Price, such Holder
shall be entitled to receive the amount so deducted; provided, however, that any
interest or Additional Amounts represented by Coupons shall be payable only upon
presentation and surrender of those Coupons at an Office or Agency for such
Security located outside of the United States except as otherwise provided in
Section 1002.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal and any premium, until paid, shall bear
interest from the Redemption Date at the rate prescribed therefor in the
Security.
Section 1107. Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part shall be
surrendered at any Office or Agency for such Security (with, if the Company or
the Trustee so requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing) and the Company shall
execute and the Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Registered Security or Securities of the
same series, containing identical terms and provisions, of any authorized
denomination as requested by such Holder in aggregate principal amount equal to
and in exchange for the unredeemed portion of the principal of the Security so
surrendered. If a Security in global form is so surrendered, the Company shall
execute, and the Trustee shall authenticate and deliver to the U.S. Depositary
or other Depositary for such Security in global form as shall be specified in
the Company Order with respect thereto to the Trustee, without service charge, a
new Security in global form in a denomination equal to and in exchange for the
unredeemed portion of the principal of the Security in global form so
surrendered.
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ARTICLE TWELVE
SINKING FUNDS
Section 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of a series, except as otherwise permitted or
required in or pursuant to this Indenture or any Security of such series issued
pursuant to this Indenture.
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by the
terms of Securities of such series is herein referred to as an "optional sinking
fund payment". If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided
in Section 1202. Each sinking fund payment shall be applied to the redemption
of Securities of any series as provided for by the terms of Securities of such
series and this Indenture.
Section 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company may, in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of any series to be made pursuant to the
terms of such Securities (1) deliver Outstanding Securities of such series
(other than any of such Securities previously called for redemption or any of
such Securities in respect of which cash shall have been released to the
Company), together in the case of any Bearer Securities of such series with all
unmatured Coupons appertaining thereto, and (2) apply as a credit Securities of
such series which have been redeemed either at the election of the Company
pursuant to the terms of such series of Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, provided that such Securities have not been previously so credited.
Such Securities shall be received and credited for such purpose by the Trustee
at the Redemption Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly. If as a result of the delivery or credit of Securities
of any series in lieu of cash payments pursuant to this Section 1202, the
principal amount of Securities of such series to be redeemed in order to exhaust
the aforesaid cash payment shall be less than $100,000, the Trustee need not
call Securities of such series for redemption, except upon Company Request, and
such cash payment shall be held by the Trustee or a Paying Agent and applied to
the next succeeding sinking fund payment, provided, however, that the Trustee or
such Paying Agent shall at the request of the Company from time to time pay over
and deliver to the Company any cash payment so being held by the Trustee or such
Paying Agent upon delivery by the Company to the Trustee of Securities of that
series purchased by the Company having an unpaid principal amount equal to the
cash payment requested to be released to the Company.
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Section 1203. Redemption of Securities for Sinking Fund.
Not less than 75 days prior to each sinking fund payment date for any
series of Securities, the Company shall deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing mandatory sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivering and crediting of
Securities of that series pursuant to Section 1202, the basis for such credit,
that such Securities have not been previously so credited and the optional
amount, if any, to be added in cash to the next ensuing mandatory sinking fund
payment, and will also deliver to the Trustee any Securities to be so credited
and not theretofore delivered. If such Officers' Certificate shall specify an
optional amount to be added in cash to the next ensuing mandatory sinking fund
payment, the Company shall thereupon be obligated to pay the amount therein
specified. Not less than 45 days before each such sinking fund payment date the
Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 1103 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Company
in the manner provided in Section 1104. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
Section 1301. Applicability of Article.
Repayment of Securities of any series before their Stated Maturity at the
option of Holders thereof shall be made in accordance with the terms of such
Securities and (except as otherwise specified by the terms of such series
established pursuant to Section 301) in accordance with this Article.
Section 1302. Repayment of Securities.
Securities of any series subject to repayment in whole or in part at the
option of the Holders thereof will, unless otherwise provided in the terms of
such Securities, be repaid at a price equal to the principal amount thereof,
together with interest, if any, thereon accrued to the Repayment Date specified
in or pursuant to the terms of such Securities. The Company covenants that on
or before the Repayment Date it will deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate and hold
in trust as provided in Section 1003) an amount of money sufficient to pay the
principal (or, if so provided by the terms of the Securities of any series, a
percentage of the principal) of, and (except if the Repayment Date shall be an
Interest Payment Date) accrued interest on, all the Securities or portions
thereof, as the case may be, to be repaid on such date.
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Section 1303. Exercise of Option.
Securities of any series subject to repayment at the option of the Holders
thereof will contain an "Option to Elect Repayment" form on such Securities. In
order for any Security to be repaid at the option of the Holder, the Trustee
must receive at the Place of Payment therefor specified in the terms of such
Security (or at such other place or places of which the Company shall from time
to time notify the Holders of such Securities) not earlier than 60 days nor
later than 30 days prior to the Repayment Date (1) the Security so providing for
such repayment together with the "Option to Elect Repayment" form duly completed
by the Holder (or by the Holder's attorney duly authorized in writing) or (2) a
facsimile transmission or a letter from a member of a national securities
exchange, or the National Association of Securities Dealers, Inc. ("NASD"), or a
commercial bank or trust company in the United States setting forth the name of
the Holder of Security, the principal amount of the Security, the amount of the
Security to be repaid, the certificate number or a description of the tenor and
terms of the Security, a statement that the option to elect repayment is being
exercised thereby and a guarantee that the Security to be repaid, together with
the duly completed form entitled "Option to Elect Repayment", will be received
by the Trustee not later than the fifth Business Day after the date of such
facsimile transmission or letter; provided, however, that such facsimile
transmission or letter shall only be effective if such Security and form duly
completed are received by the Trustee by such fifth Business Day. If less than
the entire principal amount of such Security is to be repaid in accordance with
the terms of such Security, the principal amount of such Security to be repaid,
in increments of the minimum denomination for Securities of such series, and the
denomination or denominations of the Security or Securities to be issued to the
Holder for the portion of the principal amount of such Security surrendered that
is not to be repaid, must be specified. The principal amount of any Security
providing for repayment at the option of the Holder thereof may not be repaid in
part if, following such repayment, the unpaid principal amount of such Security
would be less than the minimum authorized denomination of Securities of the
series of which such Security to be repaid is a part. Except as otherwise may
be provided by the terms of any Security providing for repayment at the option
of the Holder thereof, exercise of the repayment option by the Holder shall be
irrevocable unless waived by the Company.
Section 1304. When Securities Presented for Repayment Become Due and
Payable.
If the Securities of any series providing for repayment at the option of
the Holders thereof shall have been surrendered as provided in this Article and
as provided by or pursuant to the terms of such Securities, such Securities or
the portions thereof, as the case may be, to be repaid shall become due and
payable and shall be paid by the Company on the Repayment Date therein
specified, and on and after such Repayment Date (unless the Company shall
default in the payment of such Securities on such Repayment Date) such
Securities so to be repaid shall cease to bear interest. Upon surrender of any
such Security for repayment in accordance with such provisions, the principal
amount of such Security so to be repaid shall be paid by the Company, together
with accrued interest, if any, to the Repayment Date; provided that,
installments of interest, if any, whose Stated Maturity is on or prior to the
Repayment Date shall be payable (but without interest thereon, unless the
Company shall default in the payment thereof) to the Holders of such Securities,
or one or more Predecessor Securities, registered as such at the close of
business on the relevant Record Dates according to their terms and the
provisions of Section 307.
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If the principal amount of any Security surrendered for repayment shall not
be so repaid upon surrender thereof, such principal amount (together with
interest, if any, thereon accrued to such Repayment Date) shall, until paid,
bear interest from the Repayment Date at the rate of interest set forth in such
Security.
Section 1305. Securities Repaid in Part.
Upon surrender of any Registered Security which is to be repaid in part
only (with, if the Company or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder thereof or his attorney duly
authorized in writing), the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of such Security, without service charge
and at the expense of the Company, a new Registered Security or Securities of
the same series, Stated Maturity and original issue date of any authorized
denomination specified by the Holder, in an aggregate principal amount equal to
and in exchange for the portion of the principal of such Security so surrendered
which is not to be repaid.
Section 1306. Compliance with Exchange Act.
In connection with any repayment of Securities pursuant to this Article,
the Company will comply with the provisions of Rule 13e-4, Rule 14e-1 and any
other tender offer rules under the Securities Exchange Act of 1934, if required,
and will file Schedule 13E-4 or any other schedule, if required.
ARTICLE FOURTEEN
SECURITIES IN FOREIGN CURRENCIES
Section 1401. Applicability of Article.
Whenever this Indenture provides for any distribution to Holders of
Securities of any series in which not all of such Securities are denominated in
the same Currency, in the absence of any provision to the contrary in or
pursuant to this Indenture or the Securities of such series, any amount in
respect of any Security denominated in a Currency other than Dollars shall be
treated for any such distribution as that amount of Dollars that could be
obtained for such amount on such reasonable basis of exchange and as of the
record date with respect to Registered Securities of such series (if any) for
such distribution (or, if there shall be no applicable record date, such other
date reasonably proximate to the date of such distribution) as the Company may
specify in a written notice to the Trustee or, in the absence of such written
notice, as the Trustee may determine.
ARTICLE FIFTEEN
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MEETINGS OF HOLDERS OF SECURITIES
Section 1501. Purposes for Which Meetings may be Called.
A meeting of Holders of Securities of any series may be called at any time
and from time to time pursuant to this Article to make, give or take any
request, demand, authorization, direction, notice, consent, waiver or other Act
provided by this Indenture to be made, given or taken by Holders of Securities
of such series.
Section 1502. Call, Notice and Place of Meetings.
(1) The Trustee may at any time call a meeting of Holders of Securities of
any series for any purpose specified in Section 1501, to be held at such time
and at such place in the Borough of Manhattan, The City of New York, or, if
Securities of such series have been issued in whole or in part as Bearer
Securities, in London or in such place outside the United States as the Trustee
shall determine. Notice of every meeting of Holders of Securities of any
series, setting forth the time and the place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be given, in the
manner provided in Section 106, not less than 21 nor more than 180 days prior to
the date fixed for the meeting.
(2) In case at any time the Company (by or pursuant to a Company
Resolution) or the Holders of at least 10% in principal amount of the
Outstanding Securities of any series shall have requested the Trustee to call a
meeting of the Holders of Securities of such series for any purpose specified in
Section 1501, 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 or made the first publication of the notice of such meeting within 21
days after receipt of such request (whichever shall be required pursuant to
Section 106) or shall not thereafter proceed to cause the meeting to be held as
provided herein, then the Company or the Holders of Securities of such series in
the amount above specified, as the case may be, may determine the time and the
place in the Borough of Manhattan, The City of New York, or, if Securities of
such series are to be issued as Bearer Securities, in London for such meeting
and may call such meeting for such purposes by giving notice thereof as provided
in clause (1) of this Section.
Section 1503. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding Securities of
such series, or (2) a Person appointed by an instrument in writing as proxy for
a Holder or Holders of one or more Outstanding Securities of such series by such
Holder or Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall be the Persons
entitled to vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company and its counsel.
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Section 1504. Quorum; Action.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a meeting of
Holders of Securities of such series; provided, however, that if any action is
to be taken at such meeting with respect to a consent or waiver which this
Indenture expressly provides may be given by the Holders of at least 66-2/3% in
principal amount of the Outstanding Securities of a series, the Persons entitled
to vote 66-2/3% in principal amount of the Outstanding Securities of such series
shall constitute a quorum. In the absence of a quorum within 30 minutes after
the time appointed for any such meeting, the meeting shall, if convened at the
request of Holders of Securities of such series, be dissolved. In any other
case the meeting may be adjourned for a period of not less than 10 days as
determined by the chairman of the meeting prior to the adjournment of such
meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10 days
as determined by the chairman of the meeting prior to the adjournment of such
adjourned meeting. Notice of the reconvening of any adjourned meeting shall be
given as provided in Section 1502(1), except that such notice need be given only
once not less than five days prior to the date on which the meeting is scheduled
to be reconvened. Notice of the reconvening of an adjourned meeting shall state
expressly the percentage, as provided above, of the principal amount of the
Outstanding Securities of such series which shall constitute a quorum.
Except as limited by the proviso to Section 902, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a quorum is present
as aforesaid may be adopted only by the affirmative vote of the Holders of a
majority in principal amount of the Outstanding Securities of that series;
provided, however, that, except as limited by the proviso to Section 902, any
resolution with respect to any consent or waiver which this Indenture expressly
provides may be given by the Holders of at least 66-2/3% in principal amount of
the Outstanding Securities of a series may be adopted at a meeting or an
adjourned meeting duly convened and at which a quorum is present as aforesaid
only by the affirmative vote of the Holders of 66-2/3% in principal amount of
the Outstanding Securities of that series; and provided, further, that, except
as limited by the proviso to Section 902, any resolution with respect to any
request, demand, authorization, direction, notice, consent, waiver or other Act
which this Indenture expressly provides may be made, given or taken by the
Holders of a specified percentage, which is less than a majority, in principal
amount of the Outstanding Securities of a series may be adopted at a meeting or
an adjourned meeting duly reconvened and at which a quorum is present as
aforesaid by the affirmative vote of the Holders of such specified percentage in
principal amount of the Outstanding Securities of such series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the Coupons
appertaining thereto, whether or not such Holders were present or represented at
the meeting.
Section 1505. Determination of Voting Rights; Conduct and Adjournment of
Meetings.
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(1) Notwithstanding any other provisions of this Indenture, the Trustee
may make such reasonable regulations as it may deem advisable for any meeting of
Holders of Securities of such series in regard to proof of the holding of
Securities of such series 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 deem appropriate.
Except as otherwise permitted or required by any such regulations, the holding
of Securities shall be proved in the manner specified in Section 104 and the
appointment of any proxy shall be proved in the manner specified in Section 104
or by having the signature of the person executing the proxy witnessed or
guaranteed by any trust company, bank or banker authorized by Section 104 to
certify to the holding of Bearer Securities. Such regulations may provide that
written instruments appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 104 or other proof.
(2) 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 Holders of Securities as provided in Section 1502(2), in which
case the Company or the Holders of Securities of the series 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
vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
(3) At any meeting, each Holder of a Security of such series or proxy
shall be entitled to one vote for each $1,000 principal amount of Securities of
such series 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 chairman of the meeting to be not Outstanding. The
chairman of the meeting shall have no right to vote, except as a Holder of a
Security of such series or proxy.
(4) Any meeting of Holders of Securities of any series duly called
pursuant to Section 1502 at which a quorum is present may be adjourned from time
to time by Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
Section 1506. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series 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 secretary of the meeting their verified written
reports in triplicate of all votes cast at the meeting. A record, at least in
triplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes
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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 given as provided in Section 1502 and, if
applicable, Section 1504. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
ARTICLE SIXTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
Section 1601. Indenture and Securities Solely Corporate Obligations.
No recourse for the payment of the principal of or any premium or interest
on any Security, or for any claim based thereon or otherwise in respect thereof,
and no recourse under or upon any obligation, covenant or agreement of the
Company in this Indenture or in any supplemental indenture, or in any Security,
or because of the creation of any indebtedness represented thereby, shall be had
against any incorporator, stockholder, officer or director, as such, past,
present or future, of the Company or of any successor corporation, either
directly or through the Company or any successor corporation, 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 all such
liability is hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issue of the
Securities.
* * * * *
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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.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed, all
as of the day and year first above written.
[SEAL] DOMINION RESOURCES, INC.
Attest:
By:
-----------------------------------
Name:
Title:
[SEAL] THE CHASE MANHATTAN BANK,
as Trustee
Attest:
By
-----------------------------------
Name:
Title:
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<PAGE>
COMMONWEALTH OF VIRGINIA )
: SS.:
CITY OF RICHMOND )
On the _____ day of ________, ____, before me personally came
___________________, to me known, who, being by me duly sworn, did depose and
say that (s)he is a _____________ of Dominion Resources, Inc., a Virginia
corporation, one of the persons described in and who executed the foregoing
instrument; that (s)he knows the seal of said Corporation; that the seal affixed
to said instrument is such Corporation's seal; that it was so affixed by
authority of the Board of Directors of said Corporation; and that (s)he signed
(his)(her) name thereto by like authority.
-----------------------------------------
Notary Public
[NOTARIAL SEAL]
STATE OF NEW YORK )
: SS.:
COUNTY OF NEW YORK )
On the _____ day of ________, ____, before me personally came
_____________________, to me known, who, being by me duly sworn, did depose and
say that (s)he is a _____________ of The Chase Manhattan Bank, a banking
corporation organized and existing under the laws of the State of New York, one
of the persons described in and who executed the foregoing instrument; that
(s)he knows the seal of said Corporation; that the seal affixed to said
instrument is such Corporation's seal; that it was so affixed by authority of
the Board of Directors of said Corporation; and that (s)he signed (his)(her)
name thereto by like authority.
-----------------------------------------
Notary Public
[NOTARIAL SEAL]
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Exhibit 4(vi)
DOMINION RESOURCES, INC.
Issuer
TO
THE CHASE MANHATTAN BANK
Trustee
-------------------------
First Supplemental Indenture
Dated as of __________, ____
-------------------------
$___,000,000
_______Series ___ ____% Senior Notes
due __________, 20__
<PAGE>
TABLE OF CONTENTS/1/
ARTICLE 1
____ SERIES __ ___% SENIOR NOTES
SECTION 101. Establishment..........................................
SECTION 102. Definitions............................................
SECTION 103. Payment of Principal and Interest......................
SECTION 104. Denominations..........................................
SECTION 105. Global Securities......................................
SECTION 106. Additional Interest....................................
SECTION 107. Listing of Series __ Senior Notes......................
SECTION 108. Paying Agent...........................................
ARTICLE 2
MISCELLANEOUS PROVISIONS
SECTION 201. Recitals by Corporation................................
SECTION 202. Ratification and Incorporation of Original Indenture...
SECTION 203. Executed in Counterparts...............................
SECTION 204. Assignment.............................................
- ---------------
/1/This Table of Contents does not constitute part of the Indenture or have
any bearing upon the interpretation of any of its terms and provisions.
<PAGE>
THIS FIRST SUPPLEMENTAL INDENTURE is made as of the _______ day of
___________, ____, by and between DOMINION RESOURCES, INC., a Virginia
corporation, having its principal office at 120 Tredegar Street, Richmond,
Virginia 23219 (the "Company"), and THE CHASE MANHATTAN BANK, a New York banking
corporation, as Trustee (herein called the "Trustee").
WITNESSETH:
WHEREAS, the Company has heretofore entered into a Senior Indenture, dated
as of December __, 1999, (the "Original Indenture") with The Chase Manhattan
Bank;
WHEREAS, the Original Indenture is incorporated herein by this reference
and the Original Indenture, as supplemented by this First Supplemental
Indenture, is herein called the "Indenture";
WHEREAS, under the Original Indenture, a new series of Securities may at
any time be established in accordance with the provisions of the Original
Indenture and the terms of such series may be described by a supplemental
indenture executed by the Company and the Trustee;
WHEREAS, the Company proposes to create under the Indenture a series of
Securities;
WHEREAS, additional Securities of other series hereafter established,
except as may be limited in the Original Indenture as at the time supplemented
and modified, may be issued from time to time pursuant to the Indenture as at
the time supplemented and modified; and
WHEREAS, all conditions necessary to authorize the execution and delivery
of this First Supplemental Indenture and to make it a valid and binding
obligation of the Company have been done or performed.
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, the parties hereto hereby agree as follows:
ARTICLE 1
___ SERIES __ ____% SENIOR NOTES
SECTION 101. Establishment. There is hereby established a new series of
-------------
Securities to be issued under the Indenture, to be designated as the Company's
___ Series __ ____% Senior Notes, due ____________, 20___ (the "Series ___
Senior Notes").
There are to be authenticated and delivered $___,000,000 principal amount
of Series ___ Senior Notes, and no further Series ___ Senior Notes shall be
authenticated and delivered except as provided by Sections 304, 305, 306, 905 or
1107 of the Original Indenture. The Series ___ Senior Notes shall be issued in
definitive fully registered form without coupons.
<PAGE>
The Series ___ Senior Notes shall be in substantially the form set out in
Exhibit A hereto. The entire principal amount of the Series ___ Senior Notes
- ---------
shall initially be evidenced by one or more certificates issued to Cede & Co.,
as nominee for The Depository Trust Company.
The form of the Trustee's Certificate of Authentication for the Series
___ Senior Notes shall be in substantially the form set forth in Exhibit B
---------
hereto.
Each Series __ Senior Note shall be dated the date of authentication
thereof and shall bear interest from the date of original issuance thereof or
from the most recent Interest Payment Date to which interest has been paid or
duly provided for.
SECTION 102. Definitions. The following defined terms used herein shall,
-----------
unless the context otherwise requires, have the meanings specified below.
Capitalized terms used herein for which no definition is provided herein shall
have the meanings set forth in the Original Indenture.
"Business Day" means a day other than (i) a Saturday or a Sunday, (ii) a
day on which banks in New York, New York are authorized or obligated by law or
executive order to remain closed or (iii) a day on which the Corporate Trust
Office is closed for business.
"Interest Payment Dates" means __________ and ________ of each year,
commencing on _________, 20__.
"Original Issue Date" means __________, ____.
"Outstanding", when used with respect to the Series ___ Senior Notes,
means, as of the date of determination, all Series ___ Senior Notes, theretofore
authenticated and delivered under the Indenture, except:
(i) Series ___ Senior Notes theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Series ___ Senior Notes for whose payment the necessary amount
of money or money's worth has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and segregated in
trust by the Company (if the Company shall act as its own Paying Agent) for the
Holders of such Series ___ Senior Notes.
(iii) Series ___ Senior Notes as to which Defeasance has been effected
pursuant to Section 402 of the Original Indenture; and
2
<PAGE>
(iv) Series ___ Senior Notes that have been paid pursuant to Section
306 or in exchange for or in lieu of which other Series ___ Senior Notes have
been authenticated and delivered pursuant to the Indenture, other than any such
Series ___ Senior Notes in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Series ___ Senior Notes are held
by a bona fide purchaser in whose hands such Series ___ Senior Notes are valid
obligations of the Company; provided, however, that in determining, during any
period in which any Series ___ Senior Notes are owned by any Person other than
the Company or any Affiliate thereof, whether the Holders of the requisite
principal amount of Outstanding Series ___ Senior Notes have given, made or
taken any request, demand, authorization, direction, notice, consent, waiver or
other action hereunder as of any date, Series ___ Senior Notes owned, whether of
record or beneficially, by the Company or any Affiliate thereof shall be
disregarded and deemed not to be Outstanding. In determining whether the Trustee
shall be protected in relying upon such request, demand, authorization,
direction, notice, consent, waiver or other action, only Series ___ Senior Notes
that the Trustee knows to be so owned by the Company or an Affiliate of the
Company in the above circumstances shall be so disregarded. Series ___ Senior
Notes so owned that have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Series ___ Senior Notes and that
the pledgee is not the Company or any Affiliate of the Company.
"Regular Record Date" means, with respect to each Interest Payment Date,
the close of business on the 15th calendar day preceding such Interest Payment
Date.
"Stated Maturity" means ____________, 20___.
SECTION 103. Payment of Principal and Interest. The principal of the
---------------------------------
Series ___ Senior Notes shall be due at the Stated Maturity. The unpaid
principal amount of the Series ___ Senior Notes shall bear interest at the rate
of ____% per annum until paid or duly provided for, such interest to accrue from
the Original Issue Date or from the most recent Interest Payment Date to which
interest has been paid or duly provided for. Interest shall be paid semi-
annually in arrears on each Interest Payment Date to the Person in whose name
the Series ___ Senior Notes are registered on the Regular Record Date for such
Interest Payment Date; provided that interest payable at the Stated Maturity of
principal as provided herein will be paid to the Person to whom principal is
payable. Any such interest that is not so punctually paid or duly provided for
will forthwith cease to be payable to the Holders on such Regular Record Date
and may either be paid to the Person or Persons in whose name the Series ___
Senior Notes are registered at the close of business on a Special Record Date
for the payment of such defaulted interest to be fixed by the Trustee (Special
Record Date), notice whereof shall be given to Holders of the Series ___ Senior
Notes not less than ten (10) days prior to such Special Record Date, or be paid
at any time in any other lawful manner not inconsistent with the requirements of
any securities exchange, if any, on which the Series ___ Senior Notes may be
listed, and upon such notice as may be required by any such exchange, all as
more fully provided in the Original Indenture.
3
<PAGE>
Payments of interest on the Series ___ Senior Notes will include interest
accrued to but excluding the respective Interest Payment Dates. Interest
payments for the Series ___ Senior Notes shall be computed and paid 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 Series ___ Senior Notes 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 payment in respect of
any such delay), in each case with the same force and effect as if made on the
date the payment was originally payable.
Payment of the principal and interest on the Series ___ Senior Notes shall
be made at the office of the Paying Agent in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts, with any such payment that is due at the Stated
Maturity of any Series ___ Senior Notes being made upon surrender of such Series
___ Senior Notes to the Paying Agent. Payments of interest (including interest
on any Interest Payment Date) will be made, subject to such surrender where
applicable, at the option of the Company, (i) by check mailed to the address of
the Person entitled thereto as such address shall appear in the Security
Register or (ii) by wire transfer at such place and to such account at a banking
institution in the United States as may be designated in writing to the Trustee
at least sixteen (16) days prior to the date for payment by the Person entitled
thereto. In the event that any date on which principal and interest is payable
on the Series ___ Senior Notes is not a Business Day, then payment of the
principal and interest payable on such date will be made on the next succeeding
day that is a Business Day (and without any interest or payment in respect of
any such delay), in each case with the same force and effect as if made on the
date the payment was originally payable.
SECTION 104. Denominations. The Series ___ Senior Notes may be issued in
-------------
denominations of $________, or any integral multiple thereof.
SECTION 105. Global Securities. The Series ___ Senior Notes will be
-----------------
issued initially in the form of one Global Security registered in the name of
the Depositary (which shall be The Depository Trust Company) or its nominee.
Except under the limited circumstances described below, Series ___ Senior Notes
represented by such Global Security will not be exchangeable for, and will not
otherwise be issuable as, Series ___ Senior Notes in definitive form. The Global
Security described above may not be transferred except by the Depositary to a
nominee of the Depositary or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary or to a successor Depositary or its nominee.
Owners of beneficial interests in such a Global Security will not be
considered the Holders thereof for any purpose under the Indenture, and no
Global Security representing a Series __ Senior Note shall be exchangeable,
except for another Global Security of like denomination and tenor to be
registered in the name of the Depositary or its nominee or to a
4
<PAGE>
successor Depositary or its nominee or except as described below. The rights of
Holders of such Global Security shall be exercised only through the Depositary.
A Global Security shall be exchangeable for Series ___ Senior Notes
registered in the names of persons other than the Depositary or its nominee only
if (i) the Depositary 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 by the Company within 90 days of receipt by the
Company of such notification, or if at any time the Depositary ceases to be a
clearing agency registered under the Exchange Act at a time when the Depositary
is required to be so registered to act as such Depositary and no successor
Depositary shall have been appointed by the Company within 90 days after it
becomes aware of such cessation, or (ii) the Company in its sole discretion
determines that such Global Security shall be so exchangeable. Any Global
Security that is exchangeable pursuant to the preceding sentence shall be
exchangeable for Series ___ Senior Notes registered in such names as the
Depositary shall direct.
SECTION 106. Redemption. [The Series ___ Senior Notes shall not be
----------
subject to redemption prior to Stated Maturity.] The Series ___ Senior Notes
shall not have a sinking fund.
SECTION 107. Additional Interest. Any principal of and installment of
-------------------
interest on the Series ___ Senior Notes that is overdue shall bear interest at
the rate of ____% (to the extent that the payment of such interest shall be
legally enforceable), from the dates such amounts are due until they are paid or
made available for payment, and such interest shall be payable on demand.
SECTION 108. Paying Agent. The Trustee shall initially serve as Paying
------------
Agent with respect to the Series ___ Senior Notes, with the Place of Payment
initially being the Corporate Trust Office of the Trustee.
ARTICLE 2
MISCELLANEOUS PROVISIONS
SECTION 201. Recitals by Company. The recitals in this First
-------------------
Supplemental Indenture are made by the Company only and not by the Trustee, and
all of the provisions contained in the Original Indenture in respect of the
rights, privileges, immunities, powers and duties of the Trustee shall be
applicable in respect of the Series ___ Senior Notes and of this First
Supplemental Indenture as fully and with like effect as if set forth herein in
full.
SECTION 202. Ratification and Incorporation of Original Indenture.
----------------------------------------------------
As supplemented hereby, the Original Indenture is in all respects ratified and
confirmed, and the Original Indenture and this First Supplemental Indenture
shall be read, taken and construed as one and the same instrument.
5
<PAGE>
SECTION 203. Executed in Counterparts. This Supplemental Indenture
------------------------
may be executed in several counterparts, each of which shall be deemed to be an
original, and such counterparts shall together constitute but one and the same
instrument.
SECTION 204. Assignment. The Company shall have the right at all
----------
times to assign any of its rights or obligations under the Indenture with
respect to the Series ___ Senior Notes to a direct or indirect wholly-owned
subsidiary of the Company; provided that, in the event of any such assignment,
the Company shall remain primarily liable for the performance of all such
obligations. The Indenture may also be assigned by the Company in connection
with a transaction described in Article Eight of the Original Indenture.
6
<PAGE>
IN WITNESS WHEREOF, each party hereto has caused this instrument to be
signed in its name and behalf by its duly authorized officers, all as of the day
and year first above written.
DOMINION RESOURCES, INC.
By:______________________________________
Name:____________________________________
Title:___________________________________
(SEAL)
Attest:
_______________________________
Name:__________________________
Vice President and Corporate Secretary
THE CHASE MANHATTAN BANK, as Trustee
By:______________________________________
Name:____________________________________
Title:___________________________________
(SEAL)
Attest:
_______________________________
Trust Officer
7
<PAGE>
Commonwealth of Virginia
City of Richmond ss.:
On the ____ day of ________, ____, before me personally came
_______________ ______________________ to me known, who, being by me duly sworn,
did depose and say that (s)he is ________________________ of Dominion Resources,
Inc., one of the corporations described in and which executed the foregoing
instrument; that (s)he knows the seal of said corporation; that the seal affixed
to said instrument is such corporate seal; that it was so affixed by authority
of the Board of Directors of said corporation, and that (s)he signed his/her
name thereto by like authority.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
____day of ________, ____.
(Notarial Seal) ______________________________
Notary Public
My commission expires: _______________.
State of New York
City/County of New York ss.:
On the ____ day of ________, ____, before me personally came
_____________________________________ to me known, who, being by me duly sworn,
did depose and say that (s)he is _________________________ of The Chase
Manhattan Bank, one of the corporations described in and which executed the
foregoing instrument; that (s)he knows the seal of said corporation; that the
seal affixed to said instrument is such corporate seal; that it was so affixed
by authority of the Board of Directors of said corporation, and that (s)he
signed his/her name thereto by like authority.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this ____
day of ________, ____.
(Notarial Seal) ______________________________
Notary Public
My commission expires: _______________.
8
<PAGE>
EXHIBIT A
FORM OF
____ SERIES B ____% SENIOR NOTE,
DUE ____________, 20___
[UNLESS THIS CERTIFICATE 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
CERTIFICATE 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 IS MADE TO [CEDE & CO.], ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED
OWNER HEREOF, [CEDE & CO.,] HAS AN INTEREST HEREIN.]**
[THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.]**
=====================
DOMINION RESOURCES, INC.
=====================
$_____________
____ SERIES B ____% SENIOR NOTE,
DUE ____________, 20___
No. ___ CUSIP No. ____
Dominion Resources, Inc., a corporation duly organized and existing
under the laws of Virginia (herein called the "Company", which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to [Cede & Co.]**, or registered assigns (the
"Holder"), the principal sum of __________________ Dollars
- -----------------------
**Insert in Global Securities.
<PAGE>
($______________) on ____________, 20___, and to pay interest thereon from
________ 1, ____ or from the most recent Interest Payment Date to which interest
has been paid or duly provided for, semi-annually on ______________ and
__________ in each year, commencing ________, 2000, at the rate of ____% per
annum, until the principal hereof is paid or made available for payment,
provided that any principal, and any such installment of interest, that is
overdue shall bear interest at the rate of ____% per annum (to the extent that
the payment of such interest shall be legally enforceable), from the dates such
amounts are due until they are paid or made available for payment, and such
interest shall be payable on demand. The interest so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as provided in
such Indenture, be paid to the Person in whose name this Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest, which shall be the fifteenth calendar day
(whether or not a Business Day) next preceding such Interest Payment Date. Any
such interest not so punctually paid or duly provided for will forthwith cease
to be payable to the Holder on such Regular Record Date and may either be paid
to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Securities of this series not less than 10
days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities of this series may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in said Indenture.
Payment of the principal of and any such interest on this Security
will be made at the office of the Paying Agent or agency of the Company in the
Borough of Manhattan, City and State of New York, in such coin or currency of
the United States of America as at the time of payment is legal tender for
payment of public and private debts; provided, however, that at the option of
the Company payment of interest may be made (i) by check mailed to the address
of the Person entitled thereto as such address shall appear in the Security
Register or (ii) by wire transfer at such place and to such account at a banking
institution in the United States as may be designated in writing to the Trustee
at least sixteen (16) days prior to the date for payment by the Person entitled
thereto.
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
2
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
Dominion Resources, Inc.
By_______________________________________
Attest:
______________________________
[REVERSE OF SECURITY]
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under a Senior Indenture, dated as of December ___, 1999, as supplemented
by a First Supplemental Indenture dated as of ___________,____ (as amended or
supplemented from time to time, herein called the "Indenture", which term shall
have the meaning assigned to it in such instrument), between the Company and The
Chase Manhattan Bank, as Trustee (herein called the "Trustee", which term
includes any successor trustee under the Indenture), and reference is hereby
made to the Indenture for a statement of the respective rights, limitations of
rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof limited in aggregate principal amount to
$___,000,000.
[The Securities of this series are not subject to redemption prior to
Stated Maturity.]
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive certain past defaults under
the Indenture and their consequences. Any such
3
<PAGE>
consent or waiver by the Holder of this Security shall be conclusive and binding
upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange therefor
or in lieu hereof, whether or not notation of such consent or waiver is made
upon this Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than a majority in principal
amount of the Securities of this series at the time Outstanding shall have made
written request to the Trustee to institute proceedings in respect of such Event
of Default as Trustee and offered the Trustee reasonable indemnity, and the
Trustee shall not have received from the Holders of a majority in principal
amount of Securities of this series at the time Outstanding a direction
inconsistent with such request, and shall have failed to institute any such
proceeding for 60 days after receipt of such notice, request and offer of
indemnity. The foregoing shall not apply to any suit instituted by the Holder
of this Security for the enforcement of any payment of principal hereof or
interest hereon on or after the respective due dates expressed or provided for
herein.
No reference herein to the Indenture and no provision of this Security
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
Security at the times, place and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of and interest
on this Security are payable, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Securities of this series and of like
tenor, of authorized denominations and for the same aggregate principal amount,
will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $________ and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate principal
amount of Securities of this series having the same Stated Maturity and of like
tenor of any authorized denominations as requested by the Holder upon surrender
of the Security or Securities to be exchanged at the office or agency of the
Company.
4
<PAGE>
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security that are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
5
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM -- as tenants in common
TEN ENT -- as tenants by the entireties
JT TEN -- as joint tenants with rights of survivorship and not as
tenants in common
UNIF GIFT MIN ACT -- ________________________________ Custodian for
(Cust)
________________________________
(Minor)
Under Uniform Gifts to Minors Act of
________________________________
(State)
Additional abbreviations may also be used though not on the above list.
______________________________________________________________
FOR VALUE RECEIVED, the undersigned hereby sell(s) and transfer(s) unto
____________________ (please insert Social Security or other identifying number
of assignee).
________________________________________________________________
________________________________________________________________
________________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING POSTAL ZIP CODE OF
ASSIGNEE
the within Security and all rights thereunder, hereby irrevocably constituting
and appointing
________________________________________________________________
________________________________________________________________
6
<PAGE>
________________________________________________________________
________________________________________________________________
________________________________________________________________
agent to transfer said Security on the books of the Company, with full power of
substitution in the premises.
Dated: __________________ __, ____
----------------------------------
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within instrument in every particular without
alteration or enlargement, or any change whatever.
7
<PAGE>
EXHIBIT B
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to in
the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By: ________________________________
Authorized Officer
<PAGE>
Exhibit 4(vii)
SECOND SUPPLEMENTAL INDENTURE
BETWEEN
DOMINION RESOURCES, INC.
AND
THE CHASE MANHATTAN BANK
DATED AS OF ____________, ____
____% JUNIOR SUBORDINATED DEBENTURES,
DUE __________, 20__
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S> <C>
ARTICLE I
DEFINITIONS
1.1 Definition of Terms.................................................... 2
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE JUNIOR SUBORDINATED
DEBENTURES
2.1 Designation and Principal Amount....................................... 5
2.2 Stated Maturity........................................................ 5
2.3 Form and Payment; Minimum Transfer Restriction......................... 5
2.4 Exchange and Registration of Transfer of Junior Subordinated Debentures;
Restrictions on Transfers; Depositary.................................. 6
2.5 Interest............................................................... 7
ARTICLE III
[PREPAYMENT OF THE JUNIOR SUBORDINATED DEBENTURES
3.1 Tax Event or Investment Company Event Prepayment....................... 8
3.2 Optional Prepayment by Company......................................... 9
3.3 Notice of Prepayment................................................... 9
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
4.1 Extension of Interest Payment Period...................................10
4.2 Notice of Extension....................................................11
ARTICLE V
EXPENSES
5.1 Payment of Expenses....................................................11
5.2 Payment Upon Resignation or Removal....................................12
ARTICLE VI
FORM OF JUNIOR SUBORDINATED DEBENTURE
6.1 Form of Junior Subordinated Debenture..................................12
ARTICLE VII
ORIGINAL ISSUE OF JUNIOR SUBORDINATED DEBENTURES
7.1 Original issue of Junior Subordinated Debentures.......................13
</TABLE>
i
<PAGE>
<TABLE>
<S> <C>
ARTICLE VIII
MISCELLANEOUS
8.1 Ratification of Indenture; Second Supplemental Indenture Controls......13
8.2 Trustee Not Responsible for Recitals...................................13
8.3 Governing Law..........................................................13
8.4 Separability...........................................................13
8.5 Counterparts...........................................................14
Exhibit A - Form of Junior Subordinated Debenture
</TABLE>
ii
<PAGE>
SECOND SUPPLEMENTAL INDENTURE
SECOND SUPPLEMENTAL INDENTURE, dated as of ____________, ____ (the "Second
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 the First Supplemental
Indenture dated as of December 1, 1997 and this Second 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 a series of its Debentures, to be known as
its ____% Junior Subordinated Debentures due __________, 20__ (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 Second Supplemental Indenture;
WHEREAS, the Company desires that this series of Junior Subordinated
Debentures be originally issued on __________, ____ pursuant to the Indenture
[and the Trust Agreement (as defined in Section 1.1)];
[WHEREAS, Dominion Resources Capital Trust II, a Delaware statutory
business trust (the "Trust"), has offered to the purchasers (the "Underwriters")
named in Schedule I to the Underwriting Agreement (the "Underwriting Agreement")
dated __________, ____ among the Underwriters, the Trust and the Company
$___________ aggregate liquidation amount of its ____% 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 $_________ aggregate liquidation amount of its Common Securities, in
$___________ aggregate principal amount of the Junior Subordinated Debentures;]
and
WHEREAS, the Company has requested that the Trustee execute and deliver
this Second Supplemental Indenture and all requirements necessary to make this
Second 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 Second
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 Underwriters, and for the purpose of
setting forth, as provided in
<PAGE>
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 Second 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 Second 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 Second Supplemental Indenture unless otherwise stated;
(f) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Second 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) Administrative Trustee, (ii) Delaware Trustee, (iii)
Distributions, (iv) Property Trustee, and (v) Trust Securities.]
2
<PAGE>
"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
__________, 20__ or (ii) [0.50]% if such prepayment date occurs after
__________, 20__.]
["Capital Securities" has the meaning specified in the fourth recital
to this Second 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 __________, 20__, 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.]
["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
Second Supplemental Indenture.
"Definitive Debenture Certificates" means Debentures issued in
definitive, fully registered form.
["Event Prepayment Price" has the meaning specified in Section 3.1.]
"Extension Period" has the meaning specified in Section 4.1.
"Global Debenture" has the meaning specified in Section 2.4(a).
["Initial Optional Prepayment Date" has the meaning specified in
Section 3.2(a).]
"Interest Payment Date" has the meaning specified in Section 2.5.
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"Junior Subordinated Debentures" has the meaning specified in the
second recital to this Second Supplemental Indenture.
["Liquidation Amount" means the stated amount of $_____ per Capital
Security.]
["Optional Prepayment Price" has the meaning specified in Section
3.2.]
"Quotation Agent" means _____________________ and its successors.
"Record Date" has the meaning specified in Section 2.5(a).
["Reference Treasury Dealer" means (i) ___________________ , 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.]
["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.
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["Trust" has the meaning specified in the fourth recital to this
Second Supplemental Indenture.]
["Trust Agreement" means the Amended and Restated Trust Agreement
dated as of __________, ____ 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.]
["Underwriters" has the meaning specified in the fourth recital to
this Second Supplemental Indenture.]
["Underwriting Agreement" has the meaning specified in the fourth
recital to this Second Supplemental Indenture.]
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE JUNIOR SUBORDINATED
DEBENTURES
2.1 Designation and Principal Amount. There is hereby authorized one
series of Debentures, to be designated the "____% Junior Subordinated Debentures
due __________, 20__," and limited in aggregate principal amount to
$___________, 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.
2.2 Stated Maturity. The Stated Maturity of the Junior Subordinated
Debentures is __________, 20__, which may not be shortened or extended.
2.3 Form and Payment; Minimum Transfer Restriction.
(a) The Debentures shall be issued to the [holders] [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 and Additional Tax Sums, if any) on such Junior Subordinated Debentures
held by the Property Trustee will be
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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 $_______ and integral multiples of $_____ in
excess thereof, and any attempted transfer, sale or other disposition of Junior
Subordinated Debentures in a denomination of less than $_______ 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 8.2 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:]
(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(c) 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.
(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) Notwithstanding any other provisions of the Indenture (other than
the provisions set forth in this Section 2.4(c)), 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
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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(c) 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 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 ____% per annum (the "Coupon Rate") from __________, ____ 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
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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
_________, ____ 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 such delay), in each case with the same force and
effect as if made on the date such payment was originally payable.
(c) [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.
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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 Debentures, in whole or in
part, at any time on or after ________, 20__ (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 __________ of the years
indicated below.
Year Percentage
---- ----------
20__ ........................... 10_.___%
20__ ........................... 10_.___%
20__ ........................... 10_.___%
20__ ........................... 10_.___%
20__ ........................... 10_.___%
20__ ........................... 10_.___%
20__ ........................... 10_.___%
20__ ........................... 10_.___%
20__ ........................... 10_.___%
20__ ........................... 10_.___%
20__ 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,
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on and after the prepayment date interest shall cease to accrue on such Junior
Subordinated Debentures called for prepayment.]
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 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 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 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
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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.
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
Underwriters payable pursuant to
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the Underwriting 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 Underwriting 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 Second
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 Agreement or the removal or resignation of the Delaware
Trustee or the Property Trustee, as the case may be, pursuant to Section 6.6 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 4.2 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.
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ARTICLE VII
ORIGINAL ISSUE OF JUNIOR SUBORDINATED DEBENTURES
7.1 Original issue of Junior Subordinated Debentures. Junior Subordinated
Debentures in the aggregate principal amount of up to $___________ may be
executed by the Company and delivered to the Trustee for authentication by it,
and the Trustee shall thereupon authenticate and deliver said Junior
Subordinated Debentures to or upon the written order of the Company, signed by
its Chairman of the Board, any Vice Chairman of the Board, the Chief Executive
Officer, the President, or any Vice President (whether or not designated by a
number or word or words added before or after the title Vice President) and by
its Treasurer, an Assistant Treasurer, the Controller, its Corporate Secretary
or an Assistant Corporate Secretary, without any further corporate action by the
Company as follows:$___________ aggregate principal amount of Junior
Subordinated Debentures to be originally issued on the Closing Date [(as defined
in the Underwriting Agreement)].
ARTICLE VIII
MISCELLANEOUS
8.1 Ratification of Indenture; Second Supplemental Indenture Controls.
The Indenture, as supplemented by this Second Supplemental Indenture, is in all
respects ratified and confirmed, and this Second Supplemental Indenture shall be
deemed part of the Indenture in the manner and to the extent herein and therein
provided. The provisions of this Second Supplemental Indenture shall supersede
the provisions of the Indenture to the extent the Indenture is inconsistent
herewith.
8.2 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 Second Supplemental Indenture.
8.3 Governing Law. This Second 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.
8.4 Separability. In case any one or more of the provisions contained in
this Second Supplemental Indenture or in the Junior Subordinated Debentures
shall for any reason be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall
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not affect any other provisions of this Second Supplemental Indenture or of the
Junior Subordinated Debentures, but this Second 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.
8.5 Counterparts. This Second 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental
Indenture to be duly executed as of the date first above written.
DOMINION RESOURCES, INC.
By: ___________________________________
Name:
Title:
THE CHASE MANHATTAN BANK, as Trustee
By: ___________________________________
Name:
Title:
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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.]
THE DEBENTURES EVIDENCED HEREBY WILL BE ISSUED, AND MAY BE TRANSFERRED,
ONLY IN BLOCKS HAVING A PRINCIPAL AMOUNT OF NOT LESS THAN $_______. ANY
TRANSFER, SALE OR OTHER DISPOSITION OF SUCH DEBENTURES IN A BLOCK HAVING A
PRINCIPAL AMOUNT OF LESS THAN $_______ 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.
A-1
<PAGE>
NUMBER ____ [up to]/1/ $___________
DOMINION RESOURCES, INC. ___% JUNIOR SUBORDINATED
DEBENTURE DUE __________, 20__
Dated:__________________ CUSIP NO: ___________________]
Registered Holder:
DOMINION RESOURCES, INC., a corporation duly organized and existing under
the laws of the Commonwealth of Virginia (herein referred to as the "Company,"
which term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to the Registered
Holder named above, the principal sum [of ___________________________
Dollars($__________))]/2/ [specified in the Schedule annexed hereto]/3/ on
__________, 20__, 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 ______,
20__, 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 __________,
____, 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.
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
- ----------------------------
/1/ Insert in Global Debentures.
/2/ Insert in all Junior Subordinated Debentures other than Global Debentures.
/3/ Insert in Global Debentures.
A-2
<PAGE>
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 __________, 20__. 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, and Additional Tax Sums, if applicable). During any such
Extension Period, the Company shall not, 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
__________, 20__. At any time following the termination of any Extension Period
and the payment of all accrued and unpaid interest (together with any Additional
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
A-3
<PAGE>
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 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 and a Second Supplemental Indenture dated
as of ________, ____ (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 ___________ ______________________________ Dollars ($___________).
The Debentures evidenced by this Certificate may be transferred or
exchanged only in minimum denominations of $_______ and integral multiples of
$_____ in excess thereof, and any attempted transfer, sale or other disposition
of Debentures in a denomination of less than $_______ 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.
A-4
<PAGE>
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.
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-5
<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 __________, 20__, 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 __________, of the years indicated
below:
Year Percentage
---- ----------
20__ ......................... 10_.___%
20__ ......................... 10_.___%
20__ ......................... 10_.___%
20__ ......................... 10_.___%
20__ ......................... 10_.___%
20__ ......................... 10_.___%
20__ ......................... 10_.___%
20__ ......................... 10_.___%
20__ ......................... 10_.___%
20__ ......................... 10_.___%
20__ 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.
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
A-6
<PAGE>
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.
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.
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-7
<PAGE>
Exhibit 4(viii)
GUARANTEE AGREEMENT
DATED AS OF __________, ____
BY AND BETWEEN
DOMINION RESOURCES, INC.
AS GUARANTOR
AND
THE CHASE MANHATTAN BANK,
AS TRUSTEE
<PAGE>
CROSS REFERENCE TABLE*
SECTION OF TRUST SECTION OF
INDENTURE ACT OF GUARANTEE
1939, AS AMENDED AGREEMENT
- --------- -----
310(a)............................... 4.1(a)
310(b)............................... 2.8; 4.1(c)
310(c)............................... Inapplicable
311(a)............................... 2.2(b)
311(b)............................... 2.2(b)
311(c)............................... Inapplicable
312(a)............................... 2.2(a); 2.9
312(b)............................... 2.2(b); 2.9
312(c)............................... 2.9
313(a)............................... 2.3
313(b)............................... 2.3
313(c)............................... 2.3
313(d)............................... 2.3
314(a)............................... 2.4
314(b)............................... Inapplicable
314(c)............................... 2.5
314(d)............................... Inapplicable
314(e)............................... 2.5
314(f)............................... Inapplicable
315(a)............................... 3.1(d); 3.2(a)
315(b)............................... 2.7(a)
315(c)............................... 3.1(c)
315(d)............................... 3.1(d)
316(a)............................... 2.6; 5.4(a)
316(b)............................... 5.3
316(c)............................... Inapplicable
317(a)............................... 2.10
317(b)............................... Inapplicable
318(a)............................... 2.1(b)
- --------
* THIS CROSS-REFERENCE TABLE DOES NOT CONSTITUTE PART OF THE AGREEMENT AND
SHALL NOT HAVE ANY BEARING UPON THE INTERPRETATION OF ANY OF ITS TERMS OR
PROVISIONS.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
ARTICLE 1 INTERPRETATION AND DEFINITIONS...................................................... 1
SECTION 1.1 Interpretation and Definitions.............................................. 1
ARTICLE 2 TRUST INDENTURE ACT................................................................. 6
SECTION 2.1 Trust Indenture Act; Application............................................ 6
SECTION 2.2 Lists of Holders of Securities.............................................. 6
SECTION 2.3 Reports by Guarantee Trustee................................................ 6
SECTION 2.4 Periodic Reports to Guarantee Trustee....................................... 7
SECTION 2.5 Evidence of Compliance with Conditions Precedent............................ 7
SECTION 2.6 Guarantee Event of Default; Waiver.......................................... 7
SECTION 2.7 Guarantee Event of Default; Notice.......................................... 7
SECTION 2.8 Conflicting Interests....................................................... 7
SECTION 2.9 Disclosure of Information................................................... 8
SECTION 2.10 Guarantee Trustee May File Proofs of Claim.................................. 8
ARTICLE 3 POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE...................................... 8
SECTION 3.1 Powers and Duties of Guarantee Trustee...................................... 8
SECTION 3.2 Certain Rights of Guarantee Trustee......................................... 10
SECTION 3.3 Not Responsible for Recitals or Issuance of Guarantee....................... 12
ARTICLE 4 GUARANTEE TRUSTEE................................................................... 12
SECTION 4.1 Guarantee Trustee; Eligibility.............................................. 12
SECTION 4.2 Appointment, Removal and Resignation of Guarantee Trustee................... 12
ARTICLE 5 GUARANTEE........................................................................... 13
SECTION 5.1 Guarantee................................................................... 13
SECTION 5.2 Waiver of Notice and Demand................................................. 14
SECTION 5.3 Obligations Not Affected.................................................... 14
SECTION 5.4 Rights of Holders........................................................... 15
SECTION 5.5 Guarantee of Payment........................................................ 16
SECTION 5.6 Subrogation................................................................. 16
SECTION 5.7 Independent Obligations..................................................... 16
ARTICLE 6 LIMITATION OF TRANSACTIONS; SUBORDINATION........................................... 16
SECTION 6.1 Limitation of Transactions.................................................. 16
SECTION 6.2 Ranking..................................................................... 17
SECTION 6.3 Subordination of Common Securities.......................................... 17
ARTICLE 7 TERMINATION......................................................................... 17
SECTION 7.1 Termination................................................................. 17
</TABLE>
i
<PAGE>
<TABLE>
<S> <C>
ARTICLE 8 INDEMNIFICATION.................................................................... 18
SECTION 8.1 Exculpation................................................................ 18
SECTION 8.2 Compensation, Expenses and Indemnification................................. 18
ARTICLE 9 MISCELLANEOUS...................................................................... 19
SECTION 9.1 Successors and Assigns..................................................... 19
SECTION 9.2 Amendments................................................................. 19
SECTION 9.3 Notices.................................................................... 19
SECTION 9.4 Benefit.................................................................... 20
SECTION 9.5 Governing Law.............................................................. 20
</TABLE>
ii
<PAGE>
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Guarantee"), dated as of _______, ____, is
executed and delivered by DOMINION RESOURCES, INC., a Delaware 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 Securities (as defined herein) of DOMINION
RESOURCES CAPITAL TRUST ___, a Delaware statutory business trust (the "Trust").
RECITALS
WHEREAS, pursuant to the Trust Agreement (as defined herein), the Trust is
issuing on the date hereof $___,___,___ aggregate liquidation amount of
preferred securities, having a liquidation amount of $__ per security and
designated the "____% Preferred Securities" [OR INSERT OTHER DESIGNATION] of the
Trust (the "Preferred Securities") and $_________ aggregate liquidation amount
of common securities, having a liquidation amount of $__ per security and
designated the "____% Common Securities" of the Trust (the "Common Securities"
and, together with the Preferred Securities, the "Initial Securities");
[WHEREAS, pursuant to the Amended and Restated Trust Agreement, the Trust
and Dominion Resources, Inc. as Sponsor, have granted an Option (as defined in
Section 7.13(a) of the Trust Agreement) to certain underwriters or initial
purchasers, as the case may be, and such Option may be exercised on or within
[30] days after the initial Closing Date (as defined in the Trust Agreement)
such that an additional $_________ aggregate liquidation amount of Preferred
Securities (the "Option Preferred Securities") and an additional $__________
aggregate liquidation amount of Common Securities (together with the Initial
Securities and the Option Preferred Securities, the "Securities") may be issued
and sold pursuant to Sections 7.13(a) and (b) of the Trust Agreement on such
initial or second Closing Date, as the case may be; PROVIDED that if the Option
is not exercised by the underwriters or the initial purchasers, as the case may
be, then the defined term the "Securities" shall mean only the Initial
Securities;]
WHEREAS, as incentive for the Holders to purchase the Securities, the
Guarantor desires irrevocably and unconditionally to agree, to the extent set
forth in this Guarantee, to pay to the Holders of the Securities the Guarantee
Payments (as defined herein) and to make certain other payments on the terms and
conditions set forth herein; and
WHEREAS, if a Trust Enforcement Event (as defined herein) has occurred and
is continuing, the rights of holders of the Common Securities to receive
Guarantee Payments (as defined herein) under this Guarantee are subordinated to
the rights of Holders of Preferred Securities to receive Guarantee Payments
under this Guarantee;
<PAGE>
NOW, THEREFORE, in consideration of the purchase by each Holder of
Securities, which purchase the Guarantor hereby agrees shall benefit the
Guarantor, the Guarantor executes and delivers this Guarantee for the benefit of
the Holders.
ARTICLE 1
INTERPRETATION AND DEFINITIONS
SECTION 1.1 INTERPRETATION AND DEFINITIONS. In this Guarantee,
unless the context otherwise requires:
(a) capitalized terms used in this Guarantee but not defined in the
preamble above have the respective meanings assigned to them in this Section
1.1;
(b) a term defined anywhere in this Guarantee has the same meaning
throughout;
(c) all references to "the Guarantee" or "this Guarantee" are to this
Guarantee as modified, supplemented or amended from time to time;
(d) all references in this Guarantee to Articles, Sections and Recitals
are to Articles, Sections and Recitals of this Guarantee, unless otherwise
specified;
(e) unless otherwise defined in this Guarantee, a term defined in the
Trust Indenture Act has the same meaning when used in this Guarantee;
(f) a reference to the singular includes the plural and vice versa and a
reference to any masculine form of a term shall include the feminine form of a
term, as applicable; and
(g) the following terms have the following meanings:
"AFFILIATE" has the same meaning as given to that term in Rule 405 of the
Securities Act of 1933, as amended, or any successor rule thereunder.
"BUSINESS DAY" has the meaning specified in the Trust Agreement.
"COMMON SECURITIES" has the meaning specified in the Recitals
hereto.
"CORPORATE TRUST OFFICE" means the office of the Guarantee Trustee at which
at any particular time its corporate trust business shall be principally
administered, which office at the date of execution of this Guarantee is located
at 450 West 33/rd/ Street, New York, New York 10001, Attention: Capital Markets
Fiduciary Services.
"COVERED PERSON" means a Holder or beneficial owner of Securities.
2
<PAGE>
"GLOBAL SECURITY" means a fully registered, global Preferred Security
representing the Preferred Securities.
"GUARANTEE EVENT OF DEFAULT" means a default by the Guarantor on any of
its payment or other obligations under this Guarantee.
"GUARANTEE PAYMENTS" means the following payments or distributions, without
duplication, with respect to the Securities, to the extent not paid by or on
behalf of the Trust: (i) any accumulated and unpaid Distributions (as defined in
the Trust Agreement) that are required to be paid on such Securities to the
extent the Trust has sufficient funds available therefor at the time, (ii) the
Redemption Price, including all accumulated and unpaid Distributions to the date
of redemption, with respect to any Securities called for redemption by the
Trust, to the extent the Trust shall have sufficient funds available therefor at
the time or (iii) upon a voluntary or involuntary dissolution, winding-up or
termination of the Trust (other than in connection with the distribution of
Junior Subordinated Debt Securities to the Holders in exchange for Securities as
provided in the Trust Agreement), the lesser of (a) the aggregate of the
liquidation amount and all accumulated and unpaid Distributions on the
Securities to the date of payment, to the extent the Trust has sufficient funds
available therefor and (b) the amount of assets of the Trust remaining available
for distribution to Holders in liquidation of the Trust (in either case, the
"Liquidation Distribution").
"GUARANTEE TRUSTEE" means The Chase Manhattan Bank, until a successor
Guarantee Trustee has been appointed and has accepted such appointment pursuant
to the terms of this Guarantee and thereafter means each such Successor
Guarantee Trustee.
"HOLDER" means any holder of Securities, as registered on the books and
records of the Trust; provided, however, that, in determining whether the
Holders of the requisite percentage of Preferred Securities have given any
request, notice, consent or waiver hereunder, "Holder" shall not include the
Guarantor or any Affiliate of the Guarantor or any other obligor on the
Preferred Securities; and provided further that in determining whether the
Holders of the requisite liquidation amount of Preferred Securities have voted
on any matter provided for in this Guarantee, then for the purpose of such
determination only (and not for any other purpose hereunder), if the Preferred
Securities remain in the form of one or more Global Certificates (as defined in
the Trust Agreement) and if the Depositary which is the holder of such Global
Securities has sent an omnibus proxy to the Trust assigning voting rights to
Depositary Participants (as defined in the Trust Agreement) to whose accounts
the Preferred Securities are credited on the record date, the term "Holders"
shall mean such Depositary Participants acting at the direction of the
Beneficial Owners (as defined in the Trust Agreement).
"INDEMNIFIED PERSON" means the Guarantee Trustee, any Affiliate of the
Guarantee Trustee, or any officers, directors, shareholders, members, partners,
employees, representatives, nominees, custodians or agents of the Guarantee
Trustee.
3
<PAGE>
"INDENTURE" means the Junior Subordinated Indenture, dated as of December
1, 1997, by and between Dominion Resources, Inc. and The Chase Manhattan Bank as
Trustee, as supplemented and amended by a First Supplemental Indenture dated as
of December 1, 1997 and as further amended or supplemented by any other
indenture supplemental thereto, pursuant to which the Junior Subordinated Debt
Securities are to be issued to the Property Trustee as defined in the Trust
Agreement.
"JUNIOR SUBORDINATED DEBT SECURITIES" means the series of junior
subordinated debt securities to be issued by Dominion Resources, Inc. designated
the "____% Junior Subordinated Debt Securities due ____" held by the Property
Trustee as defined in the Trust Agreement.
"LIST OF HOLDERS" has the meaning assigned to it in Section 2.2 hereof.
"MAJORITY IN LIQUIDATION AMOUNT" means, except as provided in the terms of
the Preferred Securities or by the Trust Indenture Act, Holder(s) of outstanding
Securities, voting together as a single class, or, as the context may require,
Holders of outstanding Preferred Securities or Holders of outstanding Common
Securities, voting separately as a class, who are the record owners of more than
50% of the aggregate liquidation amount (including the stated amount that would
be paid on redemption, liquidation or otherwise, plus accumulated and unpaid
Distributions to the date upon which the voting percentages are determined) of
all outstanding Securities of the relevant class. In determining whether the
Holders of the requisite amount of Securities have voted, Securities which are
owned by the Guarantor or any Affiliate of the Guarantor or any other obligor on
the Securities shall be disregarded for the purpose of any such determination.
"OFFICERS' CERTIFICATE" means, with respect to any Person, a certificate
signed on behalf of such Person by two Authorized Officers (as defined in the
Trust Agreement) of such Person. Any Officers' Certificate delivered with
respect to compliance with a condition or covenant provided for in this
Guarantee (other than pursuant to Section 314(a)(4) of the Trust Indenture Act)
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 on behalf of such Person 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
on behalf of such Person to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
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(d) a statement as to whether, in the opinion of each such officer acting
on behalf of such Person, such condition or covenant has been complied with.
"PERSON" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"PREFERRED SECURITIES" has the meaning specified in the Recitals hereto,
and shall include the preferred securities constituting Initial Securities and
the Option Preferred Securities.
"REDEMPTION PRICE" has the meaning specified in the Trust Agreement.
"RESPONSIBLE OFFICER" means, with respect to the Guarantee Trustee, any
officer with direct responsibility for the administration of this Guarantee 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.
"SECURITIES" has the meaning specified in the Recitals hereto.
"SUCCESSOR GUARANTEE TRUSTEE" means a successor Guarantee Trustee
possessing the qualifications to act as Guarantee Trustee under Section 4.1.
"TRUST AGREEMENT" means the Amended and Restated Trust Agreement, dated as
of __________ __, ____, as amended, modified or supplemented from time to time,
among the trustees of the Trust named therein, the Guarantor, as sponsor, and
the Holders, from time to time, of undivided beneficial ownership interests in
the assets of the Trust.
"TRUST ENFORCEMENT EVENT" in respect of the Securities means an Indenture
Event of Default (as defined in the Indenture) has occurred and is continuing in
respect of the Junior Subordinated Debt Securities.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939, as amended
from time to time, or any successor legislation.
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ARTICLE 2
TRUST INDENTURE ACT
SECTION 2.1 TRUST INDENTURE ACT; APPLICATION.
(a) This Guarantee is subject to the provisions of the Trust Indenture Act
that are required to be part of this Guarantee and shall, to the extent
applicable, be governed by such provisions.
(b) If and to the extent that any provision of this Guarantee limits,
qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
SECTION 2.2 LISTS OF HOLDERS OF SECURITIES.
(a) The Guarantor shall provide the Guarantee Trustee (i) except while the
Preferred Securities are represented by one or more Global Securities at least
one Business Day prior to the date for payment of Distributions, a list, in such
form as the Guarantee Trustee may reasonably require, of the names and addresses
of the Holders of the Securities ("List of Holders") as of the record date
relating to the payment of such Distributions, and (ii) at any other time,
within 30 days of receipt by the Guarantor of a written request from the
Guarantee Trustee for a List of Holders as of a date no more than 15 days before
such List of Holders is given to the Guarantee Trustee, excluding from any such
list names and addresses received by the Guarantee Trustee in its capacity as
Security Registrar; provided that the Guarantor shall not be obligated to
provide such List of Holders at any time the List of Holders does not differ
from the most recent List of Holders given to the Guarantee Trustee by the
Guarantor. The Guarantee Trustee shall preserve, in as current a form as is
reasonably practicable, all information contained in Lists of Holders given to
it, provided that the Guarantee Trustee may destroy any List of Holders
previously given to it on receipt of a new List of Holders.
(b) The Guarantee Trustee shall comply with its obligations under Sections
311(a), 311(b) and 312(b) of the Trust Indenture Act.
SECTION 2.3 REPORTS BY GUARANTEE TRUSTEE. Within 60 days after September 15
of each year (commencing with the year of the first anniversary of the issuance
of the Securities), the Guarantee Trustee shall provide to the Holders of the
Securities such reports 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 other
requirements of Section 313 of the Trust Indenture Act. The Guarantor shall
promptly notify the Guarantee Trustee when the Securities are listed on any
stock exchange.
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SECTION 2.4 PERIODIC REPORTS TO GUARANTEE TRUSTEE. The Guarantor shall
provide to the Guarantee Trustee such documents, reports and information as
required by Section 314(a) (if any) 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(a) of the
Trust Indenture Act, provided that such compliance certificate shall be
delivered on or before 120 days after the end of each calendar year of the
Guarantor.
SECTION 2.5 EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT. The Guarantor
shall provide to the Guarantee Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Guarantee 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) may be given in the form of an Officers' Certificate.
SECTION 2.6 GUARANTEE EVENT OF DEFAULT; WAIVER. The Holders of a Majority
in Liquidation Amount of the Securities may, by vote or written consent, on
behalf of the Holders of all of the Securities, waive any past Guarantee Event
of Default and its consequences. Upon such waiver, any such Guarantee Event of
Default shall cease to exist, and any Guarantee Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this
Guarantee, but no such waiver shall extend to any subsequent or other default or
Guarantee Event of Default or impair any right consequent thereon.
SECTION 2.7 GUARANTEE EVENT OF DEFAULT; NOTICE.
(a) The Guarantee Trustee shall, within 90 days after the occurrence of a
Guarantee Event of Default actually known to a Responsible Officer of the
Guarantee Trustee, transmit by mail, first class postage prepaid, to the Holders
of the Securities, notices of all such Guarantee Events of Default, unless such
defaults have been cured before the giving of such notice; provided, that the
Guarantee Trustee shall be protected in withholding such notice if and so long
as a Responsible Officer of the Guarantee Trustee in good faith determines that
the withholding of such notice is in the interests of the Holders of the
Securities.
(b) The Guarantee Trustee shall not be deemed to have knowledge of any
Guarantee Event of Default unless the Guarantee Trustee shall have received
written notice thereof from the Guarantor or a Holder or a Responsible Officer
of the Guarantee Trustee charged with the administration of this Guarantee shall
have obtained actual knowledge thereof.
SECTION 2.8 CONFLICTING INTERESTS. The Trust Agreement, the Amended and
Restated Trust Agreement of Dominion Resources Capital Trust I dated as of
December 8, 1997, among the Guarantor, The Chase Manhattan Bank, as Property
Trustee, Chase Manhattan Bank Delaware, as Delaware Trustee and the
Administrators named therein, and the Capital Securities Guarantee Agreement
dates as of December 8,
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1997, between the Guarantor and The Chase Manhattan Bank, as Guarantee Trustee
shall be deemed to be specifically described in this Guarantee for the purposes
of clause (i) of the first proviso contained in Section 310(b) of the Trust
Indenture Act.
SECTION 2.9 DISCLOSURE OF INFORMATION. The disclosure of information as
to the names and addresses of the Holders of the Securities in accordance with
Section 312 of the Trust Indenture Act, regardless of the source from which such
information was derived, shall not be deemed to be a violation of any existing
law, or any law hereafter enacted which does not specifically refer to Section
312 of the Trust Indenture Act, nor shall the Guarantee Trustee be held
accountable by reason of mailing any material pursuant to a request made under
Section 312(b) of the Trust Indenture Act.
SECTION 2.10 GUARANTEE TRUSTEE MAY FILE PROOFS OF CLAIM. Upon the
occurrence of a Guarantee Event of Default, the Guarantee Trustee is hereby
authorized to (a) recover 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) file 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 Securities allowed in any judicial proceedings relative to the
Guarantor, its creditors or its property.
ARTICLE 3
POWERS, DUTIES AND RIGHTS OF
GUARANTEE TRUSTEE
SECTION 3.1 POWERS AND DUTIES OF GUARANTEE TRUSTEE.
(a) This Guarantee shall be held by the Guarantee Trustee on behalf of
the Trust for the benefit of the Holders of the Securities, and the Guarantee
Trustee shall not transfer this Guarantee to any Person except a Holder of
Securities exercising his or her rights pursuant to Section 5.4(b) 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 in and to this Guarantee shall automatically
vest in any Successor Guarantee Trustee, and such vesting and succession of
title shall be effective whether or not conveyance documents have been executed
and delivered pursuant to the appointment of such Successor Guarantee Trustee.
(b) If a Guarantee Event of Default actually known to a Responsible
Officer of the Guarantee Trustee has occurred and is continuing, the Guarantee
Trustee shall be entitled to enforce this Guarantee for the benefit of the
Holders of the Securities.
(c) The Guarantee Trustee, before the occurrence of any Guarantee Event
of Default and after the curing of all Guarantee Events of Default that may have
occurred, shall undertake to perform only such duties as are specifically set
forth in this Guarantee, and no implied covenants shall be read into this
Guarantee against the Guarantee Trustee. In case a Guarantee Event of Default
has occurred (that has not been cured or waived
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pursuant to Section 2.6) and is actually known to a Responsible Officer of the
Guarantee Trustee, the Guarantee Trustee shall exercise such of the rights and
powers vested in it by this Guarantee, 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 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 Guarantee Event of Default and
after the curing or waiving of all such Guarantee 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, 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, and no implied covenants or obligations shall be read into
this Guarantee against the Guarantee Trustee; 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; but in
the case of any such certificates or opinions that by any provision
hereof 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;
(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 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; and
(iv) no provision of this Guarantee shall require the Guarantee
Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the
exercise of any of its rights or
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powers, if the Guarantee Trustee shall have reasonable grounds for
believing that the repayment of such funds or liability is not reasonably
assured to it under the terms of this Guarantee or if the Guarantee Trustee
shall have reasonable grounds for believing that an indemnity, reasonably
satisfactory to the Guarantee Trustee, against such risk or liability is
not reasonably assured to it under the terms of this Guarantee.
SECTION 3.2 CERTAIN RIGHTS OF GUARANTEE TRUSTEE.
(a) Subject to the provisions of Section 3.1:
(i) The Guarantee Trustee may conclusively rely, and shall be fully
protected in acting or refraining from acting upon, any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document 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 shall be sufficiently evidenced by an Officers' Certificate;
(iii) Whenever, in the administration of this Guarantee, the Guarantee
Trustee shall deem it desirable that a matter be proved or established
before taking, suffering or omitting any action hereunder, the Guarantee
Trustee (unless other evidence is herein specifically prescribed) may, in
the absence of bad faith on its part, request and conclusively rely upon an
Officers' Certificate which, upon receipt of such request, shall be
promptly delivered by the Guarantor;
(iv) The Guarantee Trustee shall have no duty to see to any
recording, filing or registration or any instrument (or any rerecording,
refiling or re-registration thereof);
(v) The Guarantee Trustee may consult with counsel, 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 by it hereunder in good faith and in accordance with
such advice or opinion. Such counsel may be counsel to the Guarantor or any
of its Affiliates and may include any of its employees. The Guarantee
Trustee shall have the right at any time to seek instructions concerning
the administration of this Guarantee from any court of competent
jurisdiction;
(vi) The Guarantee Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Guarantee at the request
or direction of any Holder, unless such Holder shall have provided to the
Guarantee Trustee such security and indemnity, reasonably satisfactory to
the Guarantee Trustee, against the costs, expenses (including attorneys'
fees and expenses and the expenses of
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the Guarantee Trustee's agents, nominees or custodians) 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)(vi) shall
be taken to relieve the Guarantee Trustee, upon the occurrence of a
Guarantee Event of Default, of its obligation to exercise the rights and
powers vested in it by this Guarantee in the manner provided by Section
3.1(c);
(vii) The Guarantee Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Guarantee Trustee, in its
discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit;
(viii) The Guarantee Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents, nominees, custodians or attorneys, and the Guarantee Trustee shall
not be responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder;
(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, both of which shall be
conclusively evidenced by the Guarantee Trustee's or its agent's taking
such action; and
(x) Whenever in the administration of this Guarantee, 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 written instructions from
the Holders of a Majority in Liquidation Amount of the Securities, (B) may
refrain from enforcing such remedy or right or taking such other action
until such written instructions are received and (C) shall be protected in
conclusively relying on or acting in accordance with such written
instructions.
(b) No provision of this Guarantee 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 to act 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.
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SECTION 3.3 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF GUARANTEE. The
recitals contained in this Guarantee shall be taken as the statements of the
Guarantor, and the Guarantee Trustee does not assume any responsibility for
their correctness. The Guarantee Trustee makes no representations as to the
validity or sufficiency of this Guarantee.
ARTICLE 4
GUARANTEE TRUSTEE
SECTION 4.1 GUARANTEE TRUSTEE; ELIGIBILITY.
(a) There shall be at all times a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under the laws
of the United States of America or any state or territory thereof or of the
District of Columbia, or a corporation or other Person permitted by the
Securities and Exchange Commission to act as an institutional trustee under
the Trust Indenture Act, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least 50 million
U.S. dollars ($50,000,000), and subject to supervision or examination by
federal, state, territorial or District of Columbia authority. If such
corporation publishes reports of condition at least annually, pursuant to
law or to the requirements of the supervising or examining authority
referred to above, then, for the purposes of this Section 4.1(a)(ii), 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, subject to the penultimate
paragraph thereof.
SECTION 4.2 APPOINTMENT, REMOVAL AND RESIGNATION OF GUARANTEE TRUSTEE.
(a) Subject to Section 4.2(b), unless a Guarantee Event of Default shall
have occurred and be continuing, the Guarantee Trustee may be appointed or
removed with or
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without cause at any time by the Guarantor. If a Guarantee Event of Default has
occurred and is continuing, the Guarantee Trustee may be appointed or removed by
the Holders of a Majority in Liquidation Amount of the Preferred Securities.
(b) The Guarantee Trustee shall not be removed in accordance with
Section 4.2(a) 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 to office shall hold such 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.
(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
removed or resigning Guarantee Trustee may petition 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 or removal or resignation of the
Guarantee Trustee pursuant to this Section 4.2, the Guarantor shall pay to the
Guarantee Trustee all amounts owing for fees and reimbursement of expenses which
have accrued to the date of such termination, removal or resignation.
ARTICLE 5
GUARANTEE
SECTION 5.1 GUARANTEE.
The Guarantor irrevocably and unconditionally agrees to pay in full to
the Holders the Guarantee Payments (without duplication of amounts theretofore
paid by the Trust), as and when due, regardless of any defense, right of set-off
or counterclaim that the Trust may have or assert. The Guarantor's obligation to
make a Guarantee Payment may be satisfied by direct payment of the required
amounts by the Guarantor to the Holders or by causing the Trust to pay such
amounts to the Holders. Notwithstanding anything to the
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contrary herein, the Guarantor retains all of its rights under the Indenture to
(i) extend the interest payment period on the Junior Subordinated Debt
Securities pursuant to Section 2.10 thereof and the Guarantor shall not be
obligated hereunder to make any Guarantee Payments during any Extension Period
(as defined in the certificate evidencing the Junior Subordinated Debt
Securities) with respect to the Distributions (as defined in the Trust
Agreement) on the Securities and (ii) change the maturity date of the Junior
Subordinated Debt Securities to the extent permitted by the Indenture.
SECTION 5.2 WAIVER OF NOTICE AND DEMAND.
The Guarantor hereby waives notice of acceptance of this Guarantee and of
any liability to which it applies or may apply, presentment, demand for payment,
any right to require a proceeding first against the Trust or any other Person
before proceeding against the Guarantor, protest, notice of nonpayment, notice
of dishonor, notice of redemption and all other notices and demands.
SECTION 5.3 OBLIGATIONS NOT AFFECTED.
The obligations, covenants, agreements and duties of the Guarantor under
this Guarantee shall be absolute and unconditional and shall remain in full
force and effect until the entire liquidation amount of all outstanding
Securities shall have been paid and such obligation shall in no way be affected
or impaired by reason of the happening from time to time of any event, including
without limitation, the following, whether or not with notice to, or the consent
of, the Guarantor:
(a) The release or waiver, by operation of law or otherwise, of the
performance or observance by the Trust of any express or implied agreement,
covenant, term or condition relating to the Securities to be performed or
observed by the Trust;
(b) The extension of time for the payment by the Trust of all or any
portion of the Distributions, Redemption Price, Liquidation Distribution or any
other sums payable under the terms of the Securities or the extension of time
for the performance of any other obligation under, arising out of, or in
connection with the Securities (other than an extension of time for payment of
Distributions, Redemption Price, Liquidation Distribution or other sum payable
that results from the extension of any interest payment period on the Junior
Subordinated Debt Securities or any change to the maturity date of the Junior
Subordinated Debt Securities permitted by the Indenture);
(c) Any failure, omission, delay or lack of diligence on the part of the
Property Trustee or the Holders to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Property Trustee or the Holders
pursuant to the terms of the Securities, or any action on the part of the Trust
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,
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reorganization, arrangement, composition or readjustment of debt of, or other
similar proceedings affecting, the Trust or any of the a sets of the Trust;
(e) Any invalidity of, or defect or deficiency in, the 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 Guarantee Trustee or the Holders to
give notice to, or obtain consent of the Guarantor or any other Person with
respect to the happening of any of the foregoing.
No setoff, counterclaim, reduction or diminution of any obligation, or any
defense of any kind or nature that the Guarantor has or may have against any
Holder shall be available hereunder to the Guarantor against such Holder to
reduce the payments to it under this Guarantee.
SECTION 5.4 RIGHTS OF HOLDERS.
(a) The Holders of at least a Majority in Liquidation Amount of the
Securities have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Guarantee Trustee in respect of this
Guarantee or to direct the exercise of any trust or power conferred upon the
Guarantee Trustee under this Guarantee, provided, that, subject to Section 3.1,
the Guarantee Trustee shall have the right to decline to follow any such
direction if the Guarantee Trustee shall determine that the action so directed
would be unjustly prejudicial to the Holders not taking part in such direction
or if the Guarantee Trustee being advised by counsel determines that the action
or proceeding so directed may not lawfully be taken or if the Guarantee Trustee
in good faith by its board of directors or trustees, executive committee, or a
trust committee of directors or trustees and/or Responsible Officers of the
Guarantee Trustee shall determine that the action or proceedings so directed
would involve the Guarantee Trustee in personal liability.
(b) If the Guarantee Trustee fails to enforce this Guarantee, then any
Holder of Securities may, subject to the subordination provisions of Section
6.2, institute a legal proceeding directly against the Guarantor to enforce the
Guarantee Trustee's rights under this Guarantee without first instituting a
legal proceeding against the Trust, the Guarantee Trustee or any other person or
entity. In addition, if the Guarantor has failed to make a Guarantee Payment, a
Holder of Securities may, subject to the subordination provisions of Section
6.2, directly institute a proceeding against the Guarantor for enforcement of
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the Guarantee for such payment to the Holder of the Securities of the principal
of or interest on the Junior Subordinated Debt Securities on or after the
respective due dates specified in the Junior Subordinated Debt Securities, and
the amount of the payment will be based on the Holder's pro rata share of the
amount due and owing on all of the Securities. The Guarantor hereby waives any
right or remedy to require that any action on this Guarantee be brought first
against the Trust or any other person or entity before proceeding directly
against the Guarantor.
SECTION 5.5 GUARANTEE OF PAYMENT.
This Guarantee creates a guarantee of payment and not of collection.
SECTION 5.6 SUBROGATION.
The Guarantor shall be subrogated to all (if any) rights of the Holders of
Securities against the Trust in respect of any amounts paid to such Holders by
the Guarantor under this Guarantee; provided, however, that the Guarantor shall
not (except to the extent required by mandatory provisions of law) be entitled
to enforce or exercise any right that 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, if at the time of any such payment, any amounts
are due and unpaid under this Guarantee. 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
Guarantee Trustee for the benefit of the Holders.
SECTION 5.7 INDEPENDENT OBLIGATIONS.
The Guarantor acknowledges that its obligations hereunder are independent
of the obligations of the Trust with respect to the 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 notwithstanding the occurrence
of any event referred to in subsections 5.3(a) through 5.3(g), inclusive,
hereof.
ARTICLE 6
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 LIMITATION OF TRANSACTIONS.
So long as any Securities remain outstanding, if (i) there shall have
occurred an event of default under the Indenture with respect to the Junior
Subordinated Debt Securities, (ii) there shall be a Guarantee Event of Default
or (iii) the Guarantor shall have given notice of its election of an Extension
Period as provided in the certificate evidencing the Junior Subordinated Debt
Securities and shall not have rescinded such notice, or such Extension Period or
any extension thereof shall be continuing, then the
16
<PAGE>
Guarantor shall not, and shall not permit any subsidiary of the Guarantor, to
(x) declare or pay any dividends or distributions on, or redeem, purchase,
acquire or make a liquidation payment with respect to, any of the Guarantor's
capital stock or (y) make any payment of principal, interest or premium, if any,
on or repay, repurchase or redeem any debt securities of the Guarantor that rank
on a parity with or junior in interest to the Junior Subordinated Debt
Securities or make any guarantee payments with respect to any guarantee by the
Guarantor of the debt securities of any subsidiary of the Guarantor if such
guarantee ranks on a parity with or junior in interest to the Junior
Subordinated Debt Securities (other than (a) dividends or distributions in
common stock of the Guarantor, (b) any declaration of a dividend in connection
with the implementation of a shareholders' rights plan, or the issuance of stock
under any such plan in the future, or the redemption or repurchase of any such
rights pursuant thereto, (c) payments under this Guarantee, and (d) purchases of
common stock related to the issuance of common stock or rights under any of the
Guarantor's benefit plans).
SECTION 6.2 RANKING.
This Guarantee will constitute an unsecured obligation of the Guarantor and
will rank subordinate and junior in right of payment to all Senior Indebtedness
of the Company (as defined in the Indenture) of the Guarantor in the same manner
and to the same extent as set forth in Article XIV of the Indenture.
SECTION 6.3 SUBORDINATION OF COMMON SECURITIES.
If a Trust Enforcement Event has occurred and is continuing under the Trust
Agreement, the rights of the holders of the Common Securities to receive
Guarantee Payments hereunder shall be subordinated to the rights of the Holders
of the Preferred Securities to receive Guarantee Payments under this Guarantee.
ARTICLE 7
TERMINATION
SECTION 7.1 TERMINATION.
This Guarantee shall terminate upon (i) full payment of the Redemption
Price of all Securities, (ii) distribution of the Junior Subordinated Debt
Securities to the Holders of all the Securities or (iii) full payment of the
amounts payable in accordance with the Trust Agreement upon liquidation of the
Trust. Notwithstanding the foregoing, this Guarantee will continue to be
effective or will be reinstated, as the case may be, if at any time any Holder
of Securities must restore payment of any sums paid under the Securities or
under this Guarantee.
17
<PAGE>
ARTICLE 8
INDEMNIFICATION
SECTION 8.1 EXCULPATION.
(a) No Indemnified Person shall be liable, responsible or accountable in
damages or otherwise to the Guarantor or any Covered Person for any loss,
damage, liability, expense or claim incurred by reason of any act or omission
performed or omitted by such Indemnified Person in good faith in accordance with
this Guarantee and in a manner that such Indemnified Person reasonably believed
to be within the scope of the authority conferred on such Indemnified Person by
this Guarantee or by law, except that an Indemnified Person shall be liable for
any such loss, damage or claim incurred by reason of such Indemnified Person's
negligence or willful misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in good
faith upon the records of the Guarantor and upon such information, opinions,
reports or statements presented to the Guarantor by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses, or any other facts pertinent to the existence and amount of assets from
which Distributions to Holders of Securities might properly be paid.
SECTION 8.2 COMPENSATION, EXPENSES AND INDEMNIFICATION.
(a) 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
(including the reasonable fees and expenses of its attorneys and agents)
incurred or made by the Guarantee Trustee in accordance with any provision of
this Guarantee.
(b) The Guarantor agrees to indemnify each Indemnified Person for, and to
hold each Indemnified Person harmless against any loss, liability or expense
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 including reasonable legal fees and
expenses) of defending itself against, or investigating, any claim or liability
in connection with the exercise or performance of any of its powers or duties
hereunder.
(c) The obligations of the Guarantor under this Section 8.2 shall survive
the termination of this Guarantee.
18
<PAGE>
ARTICLE 9
MISCELLANEOUS
SECTION 9.1 SUCCESSORS AND ASSIGNS.
All guarantees and agreements contained in this Guarantee shall bind the
successors, assigns, receivers, trustees and representatives of the Guarantor
and shall inure to the benefit of the Holders of the Securities then
outstanding. Except in connection with a consolidation, merger, sale or
conveyance involving the Guarantor that is permitted by Article XI of the
Indenture and pursuant to which the successor or assignee agrees in writing to
perform the Guarantor's obligations hereunder, the Guarantor shall not assign
its obligations hereunder.
SECTION 9.2 AMENDMENTS.
Except with respect to any changes that do not materially adversely affect
the rights of the Holders (in which case no consent of the Holders will be
required), this Guarantee may not be amended without the prior approval of the
Holders of at least a Majority in Liquidation Amount of the Securities. The
provisions of Section 11.2 of the Trust Agreement with respect to meetings of,
and action by written consent of, the Holders of the Securities apply to the
giving of such approval.
SECTION 9.3 NOTICES.
All notices provided for in this Guarantee shall be in writing, duly signed
by the party giving such notice, and shall be delivered by hand, telecopied or
mailed by registered or certified mail, as follows:
(a) If given to the Guarantee Trustee, at the Guarantee Trustee's mailing
address set forth below (or such other address as the Guarantee Trustee may give
notice of to the Guarantor and the Holders of the Securities):
The Chase Manhattan Bank
450 West 33/rd/ Street
New York, New York 10001
Attention: Capital Markets Fiduciary Services
Fax: (212) 946-8159/60
(b) If given to the Guarantor, at the Guarantor's mailing addresses set
forth below (or such other address as the Guarantor may give notice of to the
Guarantee Trustee and the Holders of the Securities):
19
<PAGE>
Dominion Resources, Inc.
120 Tredegar Street
Richmond, Virginia 23219
Fax: (804) 819-_____
(c) If given to any Holder of Securities, at the address set forth on
the books and records of the Trust.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid, except that if a notice or other document is refused delivery
or cannot be delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been delivered on
the date of such refusal or inability to deliver.
SECTION 9.4 BENEFIT.
This Guarantee is solely for the benefit of the Holders of the Securities
and, subject to Section 3.1(a), is not separately transferable from the
Securities.
SECTION 9.5 GOVERNING LAW.
THIS GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO ITS CONFLICT
OF LAWS PRINCIPLES.
20
<PAGE>
IN WITNESS WHEREOF, this Guarantee is executed as of the day and year
first above written.
DOMINION RESOURCES, INC.,
as Guarantor
By: _____________________________________
Name:
Title:
THE CHASE MANHATTAN BANK,
as Guarantee Trustee
By: _____________________________________
Name:
Title:
21
<PAGE>
Exhibit 4(ix)
Certificate of Trust of Dominion Resources Capital Trust II
CERTIFICATE OF TRUST
OF
DOMINION RESOURCES CAPITAL TRUST II
THIS CERTIFICATE OF TRUST of Dominion Resources Capital Trust II (the
"Trust"), 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.) (the "Act").
I. Name. The name of the business trust formed hereby is Dominion
----
Resources Capital Trust II.
II. 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.
IN WITNESS WHEREOF, the undersigned trustee of the Trust has executed this
Certificate of Trust in accordance with Section 3811(a)(1) of the Act.
CHASE MANHATTAN BANK DELAWARE
not in its individual capacity
but solely as trustee of the Trust
By: /s/ J. J. Cashin
------------------------------------
Name: John J. Cashin
Title: Vice-President
<PAGE>
Exhibit 4(x)
TRUST AGREEMENT
OF
DOMINION RESOURCES CAPITAL TRUST II
THIS TRUST AGREEMENT is made as of December 17, 1999 (this "Trust
Agreement"), by and among Dominion Resources, Inc., a Virginia corporation, as
sponsor (the "Sponsor"), and Chase Manhattan Bank Delaware, a Delaware banking
corporation (the "Trustee"). The Sponsor and the Trustee hereby agree as
follows:
1. The trust created hereby shall be known as "Dominion Resources Capital
Trust II" (the "Trust") in which name the Trustee or the Sponsor, to the extent
provided herein, may conduct the business of the Trust, make and execute
contracts, and sue and be sued.
2. The Sponsor 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 Sponsor 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
Preferred 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 Sponsor, as the sponsor of the Trust, is hereby authorized, in its
discretion, (i) to prepare and file with the Securities and Exchange Commission
(the "Commission") and to execute, in each case on behalf of the Trust, (a) a
Registration Statement (the "1933 Act Registration Statement"), including all
pre-effective and post-effective amendments thereto, relating to the
registration under the Securities Act of 1933, as amended (the "1933 Act"), of
the Preferred Securities of the Trust and (b) a Registration Statement on Form
8-A (the "1934 Act Registration Statement"), including all pre-effective and
post-effective amendments thereto, relating to the registration of the Preferred
Securities of the Trust under the Securities Exchange Act of 1934, as amended;
(ii) if and at such time as determined by the Sponsor, to file with the New York
Stock
1
<PAGE>
Exchange or any other exchange or the National Association of Securities
Dealers (each, an "Exchange"), and execute on behalf of the Trust one or more
listing applications and all other applications, statements, certificates,
agreements and other instruments as shall be necessary or desirable to cause the
Preferred Securities of the Trust to be listed on any of the Exchanges; (iii) to
negotiate, execute, deliver and perform on behalf of the Trust an underwriting
agreement with one or more underwriters relating to the offering of the
Preferred Securities of the Trust; and (iv) 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 the Preferred Securities of the
Trust under the securities or "Blue Sky" laws of such jurisdictions as the
Sponsor, on behalf of the Trust, may deem necessary or desirable.
In the event that any filing referred to in this Section 4 is required
by the rules and regulations of the Commission, any Exchange or state securities
or "Blue Sky" laws to be executed on behalf of the Trust by the Trustees, the
Trustees, in their capacities as trustees of the Trust, are hereby authorized to
join in any such filing and to execute on behalf of the Trust any and all of the
foregoing, it being understood that the Trustees, in their capacities as
trustees 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, an Exchange or state securities or "Blue Sky"
laws.
5. (a) The Trustees (the "Fiduciary Indemnified Persons") shall not be
liable, responsible or accountable in damages or otherwise to the Trust, the
Sponsor, the Trustees or any holder of the Trust securities (the Trust, the
Sponsor and any holder of the Trust securities being a "Covered Person") for any
loss, damage or claim incurred by reason of any act or omission performed or
omitted by the Fiduciary Indemnified Persons in good faith on behalf of the
Trust and in a manner the Fiduciary Indemnified Persons reasonably believed to
be within the scope of authority conferred on the Fiduciary Indemnified Persons
by this Agreement or by law, except that the Fiduciary Indemnified Persons shall
be liable for any such loss, damage or claim incurred by reason of the Fiduciary
Indemnified Person's negligence or willful misconduct with respect to such acts
or omissions.
(b) The Fiduciary Indemnified Persons shall be fully protected in
relying in good faith upon the records of the Trust and upon such information,
opinions, reports or statements presented to the Trust by any person as to
matters the Fiduciary Indemnified Persons reasonably believes are within such
other person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Trust, including information, opinions,
reports or statements as to the value and amount of the assets, liabilities,
profits, losses, or any other facts pertinent to the existence and amount of
assets from which distributions to holders of Trust securities might properly be
paid.
6. The Sponsor agrees to the fullest extent permitted by applicable law,
2
<PAGE>
(a) to indemnify and hold harmless each Fiduciary Indemnified Persons,
or any of its officers, directors, shareholders, employees, representatives or
agents, from and against any loss, damage, liability, tax, penalty, expense or
claim of any kind or nature whatsoever incurred by the Fiduciary Indemnified
Persons by reason of the creation, operation or termination of the Trust in a
manner the Fiduciary Indemnified Persons reasonably believed to be within the
scope of authority conferred on the Fiduciary Indemnified Persons by this Trust
Agreement, except that no Fiduciary Indemnified Persons shall be entitled to be
indemnified in respect of any loss, damage or claim incurred by the Fiduciary
Indemnified Persons by reason of negligence or willful misconduct with respect
to such acts or omissions; and
(b) to advance expenses (including legal fees) incurred by a Fiduciary
Indemnified Person in defending any claim, demand, action, suit or proceeding
shall, from time to time, prior to the final disposition of such claim, demand,
action, suit or proceeding, upon receipt by the Trust of an undertaking by or on
behalf of such Fiduciary Indemnified Persons to repay such amount if it shall be
determined that such Fiduciary Indemnified Person is not entitled to be
indemnified as authorized in the preceding subsection.
7. The provisions of Section 6 shall survive the termination of this
Trust Agreement or the earlier resignation or removal of the Fiduciary
Indemnified Persons.
8. The Trust may terminate without issuing any Trust securities at the
election of the Sponsor.
9. This Trust Agreement may be executed in one or more counterparts.
10. 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 Sponsor 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 Sponsor is entitled to
appoint or remove without cause any trustee of the Trust at any time. Any
trustee of the Trust may resign upon thirty days' prior notice to the Sponsor.
11. 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).
3
<PAGE>
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 Sponsor
By: /s/ G. Scott Hetzer
--------------------------
Name: G. Scott Hetzer
Title: Senior Vice President & Treasurer
CHASE MANHATTAN BANK DELAWARE,
not in its individual capacity but
solely as trustee of the Trust
By: /s/ J. J. Cashin
--------------------------
Name: John J. Cashin
Title: Vice-President
4
<PAGE>
Exhibit 4(xi)
CERTIFICATE OF TRUST
OF
DOMINION RESOURCES CAPITAL TRUST III
THIS CERTIFICATE OF TRUST of Dominion Resources Capital Trust III (the
"Trust"), 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.).
I. Name. The name of the business trust formed hereby is Dominion
----
Resources Capital Trust III.
II. 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.
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/ J. J. Cashin
-----------------------------
Name: John J. Cashin
Title: Vice-President
<PAGE>
Exbibit 4(xii)
TRUST AGREEMENT
OF
DOMINION RESOURCES CAPITAL TRUST III
THIS TRUST AGREEMENT is made as of December 17, 1999 (this "Trust
Agreement"), by and among Dominion Resources, Inc., a Virginia corporation, as
sponsor (the "Sponsor"), and Chase Manhattan Bank Delaware, a Delaware banking
corporation (the "Trustee"). The Sponsor and the Trustee hereby agree as
follows:
1. The trust created hereby shall be known as "Dominion Resources Capital
Trust III" (the "Trust") in which name the Trustee or the Sponsor, to the extent
provided herein, may conduct the business of the Trust, make and execute
contracts, and sue and be sued.
2. The Sponsor 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 Sponsor 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
Preferred 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 Sponsor, as the sponsor of the Trust, is hereby authorized, in its
discretion, (i) to prepare and file with the Securities and Exchange Commission
(the "Commission") and to execute, in each case on behalf of the Trust, (a) a
Registration Statement (the "1933 Act Registration Statement"), including all
pre-effective and post-effective amendments thereto, relating to the
registration under the Securities Act of 1933, as amended (the "1933 Act"), of
the Preferred Securities of the Trust and (b) a Registration Statement on Form
8-A (the "1934 Act Registration Statement"), including all pre-effective and
post-effective amendments thereto, relating to the registration of the Preferred
Securities of the Trust under the Securities Exchange Act of 1934, as amended;
(ii) if and at such time as determined by the Sponsor, to file with the New York
Stock
1
<PAGE>
Exchange or any other exchange or the National Association of Securities Dealers
(each, an "Exchange"), and execute on behalf of the Trust one or more listing
applications and all other applications, statements, certificates, agreements
and other instruments as shall be necessary or desirable to cause the Preferred
Securities of the Trust to be listed on any of the Exchanges; (iii) to
negotiate, execute, deliver and perform on behalf of the Trust an underwriting
agreement with one or more underwriters relating to the offering of the
Preferred Securities of the Trust; and (iv) 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 the Preferred Securities of the
Trust under the securities or "Blue Sky" laws of such jurisdictions as the
Sponsor, on behalf of the Trust, may deem necessary or desirable.
In the event that any filing referred to in this Section 4 is required by
the rules and regulations of the Commission, any Exchange or state securities or
"Blue Sky" laws to be executed on behalf of the Trust by the Trustees, the
Trustees, in their capacities as trustees of the Trust, are hereby authorized to
join in any such filing and to execute on behalf of the Trust any and all of the
foregoing, it being understood that the Trustees, in their capacities as
trustees 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, an Exchange or state securities or "Blue Sky"
laws.
5. (a) The Trustees (the "Fiduciary Indemnified Persons") shall not be
liable, responsible or accountable in damages or otherwise to the Trust, the
Sponsor, the Trustees or any holder of the Trust securities (the Trust, the
Sponsor and any holder of the Trust securities being a "Covered Person") for any
loss, damage or claim incurred by reason of any act or omission performed or
omitted by the Fiduciary Indemnified Persons in good faith on behalf of the
Trust and in a manner the Fiduciary Indemnified Persons reasonably believed to
be within the scope of authority conferred on the Fiduciary Indemnified Persons
by this Agreement or by law, except that the Fiduciary Indemnified Persons shall
be liable for any such loss, damage or claim incurred by reason of the Fiduciary
Indemnified Person's negligence or willful misconduct with respect to such acts
or omissions.
(b) The Fiduciary Indemnified Persons shall be fully protected in
relying in good faith upon the records of the Trust and upon such information,
opinions, reports or statements presented to the Trust by any person as to
matters the Fiduciary Indemnified Persons reasonably believes are within such
other person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Trust, including information, opinions,
reports or statements as to the value and amount of the assets, liabilities,
profits, losses, or any other facts pertinent to the existence and amount of
assets from which distributions to holders of Trust securities might properly be
paid.
6. The Sponsor agrees to the fullest extent permitted by applicable law,
2
<PAGE>
(a) to indemnify and hold harmless each Fiduciary Indemnified
Persons, or any of its officers, directors, shareholders, employees,
representatives or agents, from and against any loss, damage, liability, tax,
penalty, expense or claim of any kind or nature whatsoever incurred by the
Fiduciary Indemnified Persons by reason of the creation, operation or
termination of the Trust in a manner the Fiduciary Indemnified Persons
reasonably believed to be within the scope of authority conferred on the
Fiduciary Indemnified Persons by this Trust Agreement, except that no Fiduciary
Indemnified Persons shall be entitled to be indemnified in respect of any loss,
damage or claim incurred by the Fiduciary Indemnified Persons by reason of
negligence or willful misconduct with respect to such acts or omissions; and
(b) to advance expenses (including legal fees) incurred by a
Fiduciary Indemnified Person in defending any claim, demand, action, suit or
proceeding shall, from time to time, prior to the final disposition of such
claim, demand, action, suit or proceeding, upon receipt by the Trust of an
undertaking by or on behalf of such Fiduciary Indemnified Persons to repay such
amount if it shall be determined that such Fiduciary Indemnified Person is not
entitled to be indemnified as authorized in the preceding subsection.
7. The provisions of Section 6 shall survive the termination of this
Trust Agreement or the earlier resignation or removal of the Fiduciary
Indemnified Persons.
8. The Trust may terminate without issuing any Trust securities at the
election of the Sponsor.
9. This Trust Agreement may be executed in one or more counterparts.
10. 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 Sponsor 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 Sponsor is entitled to
appoint or remove without cause any trustee of the Trust at any time. Any
trustee of the Trust may resign upon thirty days' prior notice to the Sponsor.
11. 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).
3
<PAGE>
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 Sponsor
By: /s/ G. Scott Hetzer
--------------------------------------
Name: G. Scott Hetzer
Title: Senior Vice President & Treasurer
CHASE MANHATTAN BANK DELAWARE,
not in its individual capacity but
solely as trustee of the Trust
By: /s/ J. J. Cashin
--------------------------------------
Name: John J. Cashin
Title: Vice-President
4
<PAGE>
Exhibit 4(xiii)
FORM OF
AMENDED AND RESTATED TRUST AGREEMENT
By and Among
DOMINION RESOURCES, INC.
as Sponsor,
THE CHASE MANHATTAN BANK
as Property Trustee,
CHASE MANHATTAN BANK DELAWARE,
as Delaware Trustee,
and
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
Dated as of ____, ____
<PAGE>
CROSS REFERENCE TABLE*
SECTION OF TRUST
INDENTURE ACT OF SECTION OF
1939, AS AMENDED AGREEMENT
- ---------------- ----------
310(A).....................................................................6.3
310(B)..........................................................6.3(C); 6.3(D)
310(C)............................................................INAPPLICABLE
311(A)..................................................................2.2(B)
311(B)..................................................................2.2(B)
311(C)............................................................INAPPLICABLE
312(A)..................................................................2.2(A)
312(B)..................................................................2.2(B)
312(C)............................................................INAPPLICABLE
313(A).....................................................................2.3
313(B).....................................................................2.3
313(C).....................................................................2.3
313(D).....................................................................2.3
314(A).....................................................................2.4
314(B)............................................................INAPPLICABLE
314(C).....................................................................2.5
314(D)............................................................INAPPLICABLE
314(E).....................................................................2.5
314(F)............................................................INAPPLICABLE
315(A).........................................................3.9(B); 3.10(A)
315(B)..................................................................2.7(A)
315(C)..................................................................3.9(A)
315(D)..................................................................3.9(B)
316(A).....................................................2.6; 7.5(B); 7.6(C)
316(B)............................................................INAPPLICABLE
316(C)............................................................INAPPLICABLE
317(A)....................................................................3.16
317(B)............................................................INAPPLICABLE
318(A)..................................................................2.1(C)
- --------
* THIS CROSS-REFERENCE TABLE DOES NOT CONSTITUTE PART OF THE AGREEMENT AND
SHALL NOT HAVE ANY BEARING UPON THE INTERPRETATION OF ANY OF ITS TERMS OR
PROVISIONS.
<PAGE>
<TABLE>
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TABLE OF CONTENTS
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ARTICLE 1 INTERPRETATION AND DEFINITIONS.............................................1
Section 1.1 Interpretation and Definitions......................................1
ARTICLE 2 TRUST INDENTURE ACT........................................................9
Section 2.1 Trust Indenture Act; Application..................................9
Section 2.2 Lists of Holders of Securities....................................9
Section 2.3 Reports By the Property Trustee...................................10
Section 2.4 Periodic Reports to the Property Trustee..........................10
Section 2.5 Evidence of Compliance With Conditions Precedent..................10
Section 2.6 Trust Enforcement Event; Waiver...................................10
Section 2.7 Trust Enforcement Event; Notice...................................12
ARTICLE 3 ORGANIZATION............................................................... 13
Section 3.1 Name and Organization.............................................13
Section 3.2 Office............................................................13
Section 3.3 Purpose...........................................................13
Section 3.4 Authority.........................................................13
Section 3.5 Title to Property of the Trust....................................14
Section 3.6 Powers and Duties of the Administrative Trustees..................14
Section 3.7 Prohibition of Actions by the Trust and the Trustees..............17
Section 3.8 Powers and Duties of the Property Trustee.........................18
Section 3.9 Certain Duties and Responsibilities of the Property Trustee.......19
Section 3.10 Certain Rights of Property Trustee................................21
Section 3.11 Delaware Trustee..................................................23
Section 3.12 Execution of Documents............................................24
Section 3.13 Not Responsible for Recitals or Issuance of Securities............24
Section 3.14 Duration of Trust.................................................24
Section 3.15 Mergers...........................................................24
Section 3.16 Property Trustee May File Proofs of Claim.........................26
ARTICLE 4 SPONSOR.....................................................................27
Section 4.1 Responsibilities of the Sponsor...................................27
Section 4.2 Indemnification and Fees and Expenses of the Trustees.............27
ARTICLE 5 TRUST COMMON SECURITIES HOLDER.............................................28
Section 5.1 Debenture Issuer's Purchase of Common Securities..................28
Section 5.2 Covenants of the Common Securities Holder.........................28
ARTICLE 6 TRUSTEES....................................................................28
Section 6.1 Number of Trustees................................................28
Section 6.2 Delaware Trustee; Eligibility.....................................29
Section 6.3 Property Trustee; Eligibility.....................................29
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Section 6.4 Qualifications of Administrative Trustees and Delaware Trustee Generally......30
Section 6.5 Initial Administrative Trustees...............................................30
Section 6.6 Appointment, Removal and Resignation of Trustees..............................30
Section 6.7 Vacancies Among Trustees......................................................32
Section 6.8 Effect of Vacancies...........................................................32
Section 6.9 Meetings......................................................................32
Section 6.10 Delegation of Power...........................................................32
Section 6.11 Merger, Conversion, Consolidation or Succession to Business...................33
ARTICLE 7 TERMS OF SECURITIES.....................................................................33
Section 7.1 General Provisions Regarding Securities.......................................33
Section 7.2 Distributions.................................................................35
Section 7.3 Redemption of Securities......................................................36
Section 7.4 Redemption Procedures.........................................................37
Section 7.5 Voting Rights of Preferred Securities.........................................38
Section 7.6 Voting Rights of Common Securities............................................41
Section 7.7 Paying Agent..................................................................42
Section 7.8 Listing.......................................................................42
Section 7.9 Transfer of Securities........................................................42
Section 7.10 Mutilated, Destroyed, Lost or Stolen Certificates.............................44
Section 7.11 Deemed Security Holders.......................................................44
Section 7.12 Global Securities.............................................................44
Section 7.13 Over-Allotment Option.........................................................46
Section 7.14 Cancellation..................................................................48
ARTICLE 8 DISSOLUTION AND TERMINATION OF TRUST....................................................48
Section 8.1 Dissolution and Termination of Trust..........................................48
Section 8.2 Liquidation Distribution Upon Dissolution of the Trust........................49
ARTICLE 9 LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES, DELAWARE TRUSTEES OR OTHERS...........49
Section 9.1 Liability.....................................................................49
Section 9.2 Exculpation...................................................................50
Section 9.3 Fiduciary Duty................................................................50
Section 9.4 Indemnification...............................................................51
Section 9.5 Outside Businesses............................................................54
ARTICLE 10 ACCOUNTING.............................................................................54
Section 10.1 Fiscal Year...................................................................54
Section 10.2 Certain Accounting Matters....................................................54
Section 10.3 Banking.......................................................................55
Section 10.4 Withholding...................................................................55
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ARTICLE 11 AMENDMENTS AND MEETINGS.....................................................55
Section 11.1 Amendments..........................................................55
Section 11.2 Meetings of the Holders of Securities; Action by Written Consent....57
ARTICLE 12 REPRESENTATIONS OF PROPERTY TRUSTEE AND DELAWARE TRUSTEE....................59
Section 12.1 Representations and Warranties of the Property Trustee..............59
Section 12.2 Representations and Warranties of the Delaware Trustee..............60
ARTICLE 13 MISCELLANEOUS...............................................................60
Section 13.1 Notices.............................................................60
Section 13.2 Governing Law.......................................................61
Section 13.3 Intention of the Parties............................................61
Section 13.4 Headings............................................................61
Section 13.5 Successors and Assigns..............................................62
Section 13.6 Partial Enforceability..............................................62
Section 13.7 Counterparts........................................................62
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EXHIBITS
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EXHIBIT A FORM OF PREFERRED SECURITY CERTIFICATE
EXHIBIT B FORM OF COMMON SECURITY CERTIFICATE
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AMENDED AND RESTATED TRUST AGREEMENT
This AMENDED AND RESTATED TRUST AGREEMENT (the "Trust Agreement"), dated as
of ,____, 1999 is entered into by and among (i) Dominion Resources, Inc., a
Virginia corporation, as sponsor (the "Sponsor"), (ii)(a) The Chase Manhattan
Bank, a New York banking corporation, as initial Property Trustee, (b) The Chase
Manhattan Bank Delaware, a Delaware corporation, as Delaware Trustee, and (c)
Thomas N. Chewning, an individual, and G. Scott Hetzer, an individual, each of
whose address is 120 Tredegar Street, Richmond Virginia 23219 (each an
"Administrative Trustee" and, collectively, the "Administrative Trustees" and,
together with the Property Trustee and the Delaware Trustee, the "Trustees", all
not in their individual capacities, but solely as Trustees.) and (iii) the
several Holders as hereinafter defined.
RECITALS
WHEREAS, the Delaware Trustee and the Sponsor established Dominion
Resources Capital Trust __ (the "Trust"), a business trust under the Business
Trust Act (as defined, together with other capitalized terms, herein) pursuant
to a Trust Agreement dated as of December 17, 1999, (the "Original Trust
Agreement") and a Certificate of Trust (the "Certificate of Trust") filed with
the Secretary of State of the State of Delaware on December 17, 1999;
WHEREAS, the sole purpose of the Trust shall be to issue and sell certain
securities representing undivided beneficial ownership interests in the assets
of the Trust, to invest the proceeds from such sales in the Debentures issued by
the Debenture Issuer and to engage in only those activities necessary or
incidental thereto; and
WHEREAS, the parties hereto, by this Trust Agreement, amend and restate
each and every term and provision of the Original Trust Agreement;
NOW, THEREFORE, it being the intention of the parties hereto to continue
the Trust as a business trust under the Business Trust Act and that this Trust
Agreement constitute the governing instrument of such business trust, the
Trustees hereby declare that all assets contributed to the Trust be held in
trust for the benefit of the Holders, from time to time, of the Securities
representing undivided beneficial ownership interests in the assets of the Trust
issued hereunder, subject to the provisions of this Trust Agreement.
ARTICLE 1
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Interpretation and Definitions.
Unless the context otherwise requires:
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(a) capitalized terms used in this Trust Agreement but not defined in the
preamble above have the meanings assigned to them in this Section 1.1;
(b) a term defined anywhere in this Trust Agreement has the same meaning
throughout;
(c) all references to "the Trust Agreement" or "this Trust Agreement" are
to this Trust Agreement as modified, supplemented or amended from time to time;
(d) all references in this Trust Agreement to Articles, Sections, Recitals
and Exhibits are to Articles and Sections of, or Recitals and Exhibits to, this
Trust Agreement unless otherwise specified;
(e) unless otherwise defined in this Trust Agreement, a term defined in the
Trust Indenture Act has the same meaning when used in this Trust Agreement; and
(f) a reference to the singular includes the plural and vice versa and a
reference to any masculine form of a term shall include the feminine form of a
term, as applicable.
(g) the following terms have the following meanings:
"ADMINISTRATIVE TRUSTEE" means any Trustee other than the Property Trustee
and the Delaware Trustee.
"AFFILIATE" of any specified Person shall mean 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 shall mean 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" shall have meanings correlative to
the foregoing.
"AUTHORIZED OFFICER" of a Person means any Person that is authorized to
bind such Person.
"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
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(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.
"BENEFICIAL OWNERS" means, for Preferred Securities represented by a Global
Security, the Person who acquires an interest in the Preferred Securities which
is reflected on the records of the Depositary through the Depositary
Participants.
"BUSINESS DAY" means any day, other than a Saturday or Sunday, that is not
a day on which banking institutions in the Borough of Manhattan, The City of New
York are authorized or required by law, regulation or executive order to close.
"BUSINESS TRUST ACT" means Chapter 38 of Title 12 of the Delaware Code, 12
Del. Code Section 3801 et seq., as it may be amended from time to time, or any
successor legislation.
"CASH SETTLEMENT" shall have the meaning specified in the Purchase Contract
Agreement.
"CERTIFICATE" means a Common Security Certificate or a Preferred Security
Certificate.
"CERTIFICATE OF TRUST" has the meaning specified in the Recitals hereto.
"CLOSING DATE" means the date on which the Preferred Securities are issued
and sold, PROVIDED that if the Trust and the Sponsor grant the underwriters or
initial purchasers an option to purchase an additional amount of Preferred
Securities, pursuant to Section 7.13(a), including for the purpose of covering
over-allotments, pursuant to the underwriting agreement or purchase agreement,
as the case may be, and such option is so exercised, then the term "Closing
Date" shall mean such initial or second closing date, as the context requires.
"CODE" means the Internal Revenue Code of 1986, as amended from time to
time, or any successor legislation. A reference to a specific section of the
Code refers not only to such specific section but also to any corresponding
provision of any federal tax statute enacted after the date of this Trust
Agreement, as such specific section or corresponding provision is in effect on
the date of application of the provisions of this Trust Agreement containing
such reference.
"COMMISSION" means the Securities and Exchange Commission or any successor
thereto.
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"COMMON SECURITY" has the meaning specified in Section 7.1.
"COMMON SECURITY CERTIFICATE" means a definitive certificate in fully
registered form representing a Common Security, substantially in the form of
Exhibit B hereto.
"COMMON SECURITIES HOLDER" means Dominion Resources, Inc., in its capacity
as purchaser and holder of all of the Common Securities issued by the Trust.
"CORPORATE TRUST OFFICE" means the office of the Property Trustee at which
at any particular time its corporate trust business shall be principally
administered, which office at the date of execution of this Trust Agreement is
located at 450 West 33rd Street, New York, NY 10001, Attention: Capital Markets
Fiduciary Services.
"COVERED PERSON" means (a) any officer, director, shareholder, partner,
member, representative, employee or agent of (i) the Trust or (ii) the Trust's
Affiliates; and (b) any Holder.
"DEBENTURES" shall mean the series of junior subordinated debentures to be
issued by the Debenture Issuer under the Indenture and to be purchased by the
Trust and held by the Property Trustee.
"DEBENTURE ISSUER" shall mean Dominion Resources, Inc., a Virginia
corporation, in its capacity as issuer of the Debentures under the Indenture.
"DEBENTURE ISSUER INDEMNIFIED PERSON" shall mean (A) any Administrative
Trustee, (B) any Affiliate of any Administrative Trustee, (C) any officers,
directors, shareholders, members, partners, employees, representatives or agents
of any Administrative Trustee or any Affiliate thereof or (D) any officer,
employee or agent of the Trust or its Affiliates.
"DEPOSITARY" means, with respect to Securities issuable in whole or in part
in the form of one or more Global Securities, a clearing agency registered under
the Exchange Act that is designated to act as Depositary for such Securities.
"DEPOSITARY PARTICIPANT" means a member of, or participant in, the
Depositary.
"DIRECT ACTION" has the meaning specified in Section 3.8(e).
"DISTRIBUTION" means a distribution payable to Holders of Securities in
accordance with Section 7.2.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended from
time to time, or any successor legislation.
"FIDUCIARY INDEMNIFIED PERSON" has the meaning set forth in Section 9.4(b).
"FISCAL YEAR" has the meaning specified in Section 10.1.
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"GLOBAL SECURITY" means a fully registered, global Preferred Security
Certificate.
"GUARANTEE" means the Guarantee Agreement, dated as of ________ __, ____,
of the Sponsor in respect of the Securities.
"HOLDER" means any holder of Securities, as registered on the books and
records of the Trust; provided, however, that in determining whether the Holders
of the requisite liquidation amount of Preferred Securities have voted on any
matter provided for in this Trust Agreement, then for the purpose of such
determination only (and not for any other purpose hereunder), if the Preferred
Securities remain in the form of one or more Global Securities and if the
Depositary which is the holder of such Global Securities has sent an omnibus
proxy to the Trust assigning voting rights to Depositary Participants to whose
accounts the Preferred Securities are credited on the record date, the term
"Holders" shall mean such Depositary Participants acting at the direction of the
Beneficial Owners.
"INDEMNIFIED PERSON" means a Debenture Issuer Indemnified Person or a
Fiduciary Indemnified Person.
"INDENTURE" means the Indenture, dated as of December 1, 1997, between the
Debenture Issuer and The Chase Manhattan Bank, as Trustee, pursuant to which the
Debentures are to be issued.
"INDENTURE EVENT OF DEFAULT" has the meaning given to the term "Event of
Default" in the Indenture.
"INDENTURE TRUSTEE" means The Chase Manhattan Bank, in its capacity as
trustee under the Indenture until a successor is appointed thereunder, and
thereafter means such successor trustee.
"INVESTMENT COMPANY" means an investment company as defined in the
Investment Company Act and the regulations promulgated thereunder.
"INVESTMENT COMPANY ACT" means the Investment Company Act of 1940, as
amended from time to time, or any successor legislation.
"INVESTMENT COMPANY EVENT" means the receipt by the Trust of an opinion of
a nationally recognized independent counsel (an "Investment Company Act
Opinion"), to the effect that, as a result of the occurrence of a change in law
or regulation or a written 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, which Change in 1940 Act Law becomes effective on or after the
Closing Date.
"LEGAL ACTION" has the meaning specified in Section 3.6(g).
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"LIST OF HOLDERS" has the meaning specified in Section 2.2(a).
"MAJORITY IN LIQUIDATION AMOUNT" means, except as provided in the terms of
the Preferred Securities or by the Trust Indenture Act, Holder(s) of outstanding
Securities, voting together as a single class, or, as the context may require,
Holders of outstanding Preferred Securities or Holders of outstanding Common
Securities, voting separately as a class, who are the record owners of more than
50% of the aggregate liquidation amount (including the stated amount that would
be paid on redemption, liquidation or otherwise, plus accumulated and unpaid
Distributions to the date upon which the voting percentages are determined) of
all outstanding Securities of the relevant class.
"NEW YORK STOCK EXCHANGE" means the New York Stock Exchange, Inc. or any
successor thereto.
"OFFICERS' CERTIFICATE" means, with respect to any Person, a certificate
signed on behalf of such Person by two Authorized Officers of such Person. 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 on behalf of such Person 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
on behalf of such Person 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 acting
on behalf of such Person, such condition or covenant has been complied with;
provided, that the term "Officers' Certificate", when used with reference to
Administrative Trustees who are natural persons shall mean a certificate signed
by two or more of the Administrative Trustees which otherwise satisfies the
foregoing requirements.
["OPTION" has the meaning specified in Section 7.13(a).]
"PAYING AGENT" has the meaning specified in Section 3.8(h).
"PAYMENT AMOUNT" has the meaning specified in Section 7.2(c).
"PREFERRED SECURITY" has the meaning specified in Section 7.1.
"PREFERRED SECURITY CERTIFICATE" means a definitive certificate in fully
registered form representing a Preferred Security, substantially in the form of
Exhibit A.
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"PERSON" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"PROPERTY ACCOUNT" has the meaning specified in Section 3.8(c).
"PROPERTY TRUSTEE" means the Trustee meeting the eligibility requirements
set forth in Section 6.3.
"PRO RATA" means pro rata to each Holder of Securities according to the
aggregate liquidation amount of the Securities held by the relevant Holder in
relation to the aggregate liquidation amount of all Securities outstanding.
"PURCHASE CONTRACT AGREEMENT" shall mean the Purchase Contract Agreement
dated as of ____, 200_ between the Company and the [_______], as Purchase
Contract Agent.
"QUORUM" means a majority of the Administrative Trustees or, if there are
only two Administrative Trustees, both of them.
"REDEMPTION/DISTRIBUTION NOTICE" has the meaning specified in Section
7.4(a) hereto.
"REDEMPTION PRICE" means the amount for which the Securities will be
redeemed, which amount will equal (i) the redemption price paid by the Debenture
Issuer to repay or redeem, in whole or in part, the Debentures held by the Trust
plus an amount equal to accumulated and unpaid Distributions on such Securities
through the date of their redemption or (ii) such lesser amount as will be
received by the Trust in respect of the Debentures so repaid or redeemed.
"RELATED PARTY" means, with respect to the Sponsor, any direct or wholly
owned subsidiary of the Sponsor or any Person that owns, directly or indirectly,
100% of the outstanding voting securities of the Sponsor.
"RESPONSIBLE OFFICER" means, with respect to the Property Trustee, any
officer with direct responsibility for the administration of this Trust
Agreement 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.
"SECURITIES" means the Common Securities and the Preferred Securities.
"SECURITIES ACT" means the Securities Act of 1933, as amended from time to
time, or any successor legislation.
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"SPECIAL EVENT" means a Tax Event or an Investment Company Event.
"SPONSOR" means Dominion Resources, Inc., a Virginia corporation, or any
successor entity in a transaction involving the Sponsor that is permitted by
Article XI of the Indenture and pursuant to which the successor agrees in
writing to perform the Sponsor's obligations hereunder.
"SUCCESSOR DELAWARE TRUSTEE" has the meaning specified in Section 6.6(b).
"SUCCESSOR ENTITY" has the meaning specified in Section 3.15(b)(i).
"SUCCESSOR PROPERTY TRUSTEE" has the meaning specified in Section 6.6(b).
"SUCCESSOR SECURITY" has the meaning specified in Section 3.15(b)(i)b.
"SUPER MAJORITY" has the meaning specified in Section 2.6(a)(ii).
"TAX EVENT" means the receipt by the Trust of an opinion of independent tax
counsel experienced in such matters( "Tax Event Opinion"), to the effect that,
as a result of (a) any amendment to, change in or 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 (b) 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
Closing Date, there is more than an insubstantial risk that (i) the Trust is, or
will be within 90 days of the date of such opinion, subject to the United States
federal income tax with respect to income received or accrued on the Debentures,
(ii) interest payable by the Debenture Issuer on the Debentures is not, or
within 90 days of the date of such opinion will not be, deductible, in whole or
in part, by the Debenture Issuer for United States federal income tax purposes,
or (iii) the Trust is, or will be within 90 days of the date of such opinion,
subject to more than a de minimis amount of other taxes, duties or other
governmental charges.
"10% IN LIQUIDATION AMOUNT" means, except as provided in the terms of the
Preferred Securities or by the Trust Indenture Act, Holder(s) of outstanding
Securities, voting together as a single class, or, as the context may require,
Holders of outstanding Preferred Securities or Holders of outstanding Common
Securities, voting separately as a class, who are the record owners of 10% or
more of the aggregate liquidation amount (including the stated amount that would
be paid on redemption, liquidation or otherwise, plus accrued and unpaid
Distributions to the date upon which the voting percentages are determined) of
all outstanding Securities of the relevant class.
"TREASURY REGULATIONS" means the income tax regulations, including
temporary and proposed regulations, promulgated under the Code by the United
States Treasury, as such regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).
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"TRUST ENFORCEMENT EVENT" in respect of the Securities means an Indenture
Event of Default has occurred and is continuing in respect of the Debentures.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939, as amended
from time to time, or any successor legislation.
"TRUSTEE" or "TRUSTEES" means each Person who has signed this Trust
Agreement as a trustee, so long as such Person shall continue as a trustee in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with the
provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees hereunder.
ARTICLE 2
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.
(a) This Trust Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Trust Agreement 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 and to the extent that any provision of this Trust Agreement
conflicts with the duties imposed by Sections 310 to 317, inclusive, of the
Trust Indenture Act, such imposed duties shall control.
(d) The application of the Trust Indenture Act to this Trust Agreement
shall not affect the Trust's classification as a grantor trust for United States
federal income tax purposes and shall not affect the nature of the Securities as
equity securities representing undivided beneficial ownership interests in the
assets of the Trust.
SECTION 2.2 Lists of Holders of Securities.
(a) Each of the Sponsor and the Administrative Trustees on behalf of the
Trust shall provide the Property Trustee at any time when the Property Trustee
is not also acting as Security Registrar for the Securities (i) except while the
Preferred Securities are represented by one or more Global Securities, at least
five Business Days prior to the date for payment of Distributions, a list, in
such form as the Property Trustee may reasonably require, of the names and
addresses of the Holders of the Securities ("List of Holders") as of the record
date relating to the payment of such Distributions, and (ii) at any other time,
within 30 days of receipt by the Trust of a written request from the Property
Trustee for a List of Holders, as of a date no more than 15 days before such
List of Holders is given to the Property Trustee; provided that neither the
Sponsor
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nor the Administrative Trustees on behalf of the Trust shall be obligated to
provide such List of Holders at any time the List of Holders does not differ
from the most recent List of Holders given to the Property Trustee by the
Sponsor and the Administrative Trustees on behalf of the Trust. The Property
Trustee shall preserve, in as current a form as is reasonably practicable, all
information contained in Lists of Holders given to it or which it receives in
the capacity as Paying Agent (if acting in such capacity), provided that the
Property Trustee may destroy any List of Holders previously given to it on
receipt of a new List of Holders.
(b) The Property Trustee shall comply with its obligations under, and shall
be entitled to the benefits of, Sections 311(a), 311(b) and 312(b) of the Trust
Indenture Act.
SECTION 2.3 Reports by the Property Trustee.
[Within 60 days after September 15] of each year (commencing with the year
of the first anniversary of the issuance of the Preferred Securities), the
Property Trustee shall provide to the Holders of the Preferred Securities such
reports 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 Property Trustee shall also comply with the other requirements of Section
313 of the Trust Indenture Act. The Sponsor shall promptly notify the Property
Trustee when the Preferred Securities are listed on any stock exchange.
SECTION 2.4 Periodic Reports to the Property Trustee.
Each of the Sponsor 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, provided that such compliance certificate shall be delivered on
or before 120 days after the end of each calendar year of the Sponsor.
SECTION 2.5 Evidence of Compliance with Conditions Precedent.
Each of the Sponsor and the Administrative Trustees on behalf of the Trust
shall provide to the Property Trustee such evidence of compliance with any
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) may be given in the form of an Officers' Certificate.
SECTION 2.6 Trust Enforcement Events; Waiver.
(a) The Holders of a Majority in Liquidation Amount of the Preferred
Securities may, by vote or written consent, on behalf of the Holders of all of
the Preferred Securities, waive any past Trust Enforcement Event in respect of
the Preferred Securities and its consequences, provided that, if the underlying
Indenture Event of Default:
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(i) is not waivable under the Indenture, the Trust Enforcement Event
under the Trust Agreement shall also not be waivable; or
(ii) requires the consent or vote of the Holders of greater than a
majority in principal amount of the Debentures (a "Super Majority") to be waived
under the Indenture, the related Trust Enforcement Event under the Trust
Agreement may only be waived by the vote or written consent of the Holders of at
least the proportion in liquidation amount of the Preferred Securities that the
relevant Super Majority represents of the aggregate principal amount of the
Debentures outstanding.
The foregoing provisions of this Section 2.6(a) shall be in lieu of Section
316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of the
Trust Indenture Act is hereby expressly excluded from this Trust Agreement and
the Securities, as permitted by the Trust Indenture Act. Upon such waiver, any
such default shall cease to exist, and any Trust Enforcement Event with respect
to the Preferred Securities arising therefrom shall be deemed to have been
cured, for every purpose of this Trust Agreement and the Preferred Securities,
but no such waiver shall extend to any subsequent or other Trust Enforcement
Event with respect to the Preferred Securities or impair any right consequent
thereon. Any waiver by the Holders of the Preferred Securities of a Trust
Enforcement Event with respect to the Preferred Securities shall also be deemed
to constitute a waiver by the Holders of the Common Securities of any such Trust
Enforcement Event with respect to the Common Securities for all purposes of this
Trust Agreement without any further act, vote, or consent of the Holders of the
Common Securities.
(b) The Holders of a Majority in Liquidation Amount of the Common
Securities may, by vote or written consent, on behalf of the Holders of all of
the Common Securities, waive any past Trust Enforcement Event in respect of the
Common Securities and its consequences, provided that, if the underlying
Indenture Event of Default:
(i) is not waivable under the Indenture, except where the Holders of
the Common Securities are deemed to have waived such Trust Enforcement Event
under the Trust Agreement as provided below in this Section 2.6(b), the Trust
Enforcement Event under the Trust Agreement shall also not be waivable; or
(ii) requires the consent or vote of a Super Majority to be waived
under the Indenture, except where the Holders of the Common Securities are
deemed to have waived such Trust Enforcement Event under the Trust Agreement as
provided below in this Section 2.6(b), the Trust Enforcement Event under the
Trust Agreement may only be waived by the vote or written consent of the Holders
of at least the proportion in liquidation amount of the Common Securities that
the relevant Super Majority represents of the aggregate principal amount of the
Debentures outstanding; provided further, each Holder of Common Securities will
be deemed to have waived any Trust Enforcement Event and all Trust Enforcement
Events with respect to the Common Securities and the consequences thereof until
all Trust Enforcement Events with respect to the Preferred Securities have been
cured, waived or otherwise eliminated, and until such Trust Enforcement Events
with respect to the Preferred Securities have been so cured, waived or otherwise
eliminated, the Property Trustee will be deemed to be acting solely on behalf of
the Holders of the Preferred Securities and only the Holders of the Preferred
Securities
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will have the right to direct the Property Trustee in accordance with the terms
of the Securities. The foregoing provisions of this Section 2.6(b) shall be in
lieu of Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act and
such Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act are
hereby expressly excluded from this Trust Agreement and the Securities, as
permitted by the Trust Indenture Act. Subject to the foregoing provisions of
this Section 2.6(b), upon such cure, waiver or other elimination, any such
default shall cease to exist and any Trust Enforcement Event with respect to the
Common Securities arising therefrom shall be deemed to have been cured for every
purpose of this Trust Agreement, but no such waiver shall extend to any
subsequent or other Trust Enforcement Event with respect to the Common
Securities or impair any right consequent thereon.
(c) A waiver of an Indenture Event of Default by the Property Trustee at
the direction of the Holders of the Preferred Securities constitutes a waiver of
the corresponding Trust Enforcement Event with respect to the Preferred
Securities under this Trust Agreement. The foregoing provisions of this Section
2.6(c) shall be in lieu of Section 316(a)(1)(B) of the Trust Indenture Act and
such Section 316(a)(1)(B) of the Trust Indenture Act is hereby expressly
excluded from this Trust Agreement and the Securities, as permitted by the Trust
Indenture Act.
SECTION 2.7 Trust Enforcement Event; Notice.
(a) The Property Trustee shall, within 90 days after the occurrence of a
Trust Enforcement Event actually known to a Responsible Officer of the Property
Trustee, transmit by mail, first class postage prepaid, to the Holders of the
Securities, notices of all such defaults with respect to the Securities, unless
such defaults have been cured before the giving of such notice (the term
"defaults" for the purposes of this Section 2.7(a) and (b) being hereby defined
to be an Indenture Event of Default, not including any periods of grace provided
for therein and irrespective of the giving of any notice provided therein);
provided that, except for a default in the payment of principal of (or premium,
if any) or interest on any of the Debentures, the Property Trustee shall be
protected in withholding such notice if and so long as a Responsible Officer of
the Property Trustee in good faith determines that the withholding of such
notice is in the interests of the Holders of the Securities.
(b) The Property Trustee shall not be deemed to have knowledge of any
default except:
(i) a default under Sections 6.1(a) and (b) of the Indenture; or
(ii) any default as to which the Property Trustee shall have received
written notice pursuant to Section 3.10(a)(xiv) or of which a Responsible
Officer of the Property Trustee charged with the administration of this Trust
Agreement shall have actual knowledge.
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ARTICLE 3
ORGANIZATION
SECTION 3.1 Name and Organization.
The Trust hereby continued is named "Dominion Resources Capital Trust __"
as such name may be modified from time to time by the Administrative Trustees
following written notice to the Holders of Securities, the Property Trustee and
the Delaware Trustee. The Trust's activities may be conducted under the name of
the Trust or any other name deemed advisable by the Administrative Trustees.
SECTION 3.2 Office.
The address of the principal office of the Trust is c/o Dominion Resources,
Inc., 120 Tredegar Street Richmond , Virginia 23219. On 10 Business Days'
written notice to the Holders of Securities, the Property Trustee and the
Delaware Trustee, the Administrative Trustees may designate another principal
office.
SECTION 3.3 Purpose.
The exclusive purposes and functions of the Trust are (a) to issue and sell
Securities and use the gross proceeds from such sale to acquire the Debentures,
and (b) except as otherwise limited herein, to engage in only those other
activities necessary or incidental thereto. The Trust shall not borrow money,
issue debt or reinvest proceeds derived from investments, pledge any of its
assets or otherwise undertake (or permit to be undertaken) any activity that
would cause the Trust not to be classified as a grantor trust for United States
federal income tax purposes.
By the acceptance of this Trust, none of the Trustees, the Sponsor, the
Holders of the Preferred Securities or Common Securities or the Beneficial
Owners will take any position for United States federal income tax purposes
which is contrary to the classification of the Trust as a grantor trust.
SECTION 3.4 Authority.
Subject to the limitations provided in this Trust Agreement and to the
specific duties of the Property Trustee, the Administrative Trustees shall have
exclusive authority to carry out the purposes of the Trust. An action taken by
the Administrative Trustees in accordance with their powers shall constitute the
act of and serve to bind the Trust and an action taken by the Property Trustee
on behalf of the Trust in accordance with its powers shall constitute the act of
and serve to bind the Trust. In dealing with the Trustees acting on behalf of
the Trust, no Person shall be required to inquire into the authority of the
Trustees to bind the Trust. Persons dealing with the Trust are entitled to rely
conclusively on the power and authority of the Trustees as set forth in this
Trust Agreement.
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(a) Except as expressly set forth in this Trust Agreement and except if a
meeting of the Administrative Trustees is called with respect to any matter over
which the Administrative Trustees have power to act, any power of the
Administrative Trustees may be exercised by, or with the consent of, any one
such Administrative Trustee.
(b) Unless otherwise determined by the Administrative Trustees, and except
as otherwise required by the Business Trust Act or applicable law, any
Administrative Trustee is authorized to execute on behalf of the Trust any
documents which the Administrative Trustees have the power and authority to
cause the Trust to execute pursuant to Section 3.6(b), provided, that the
registration statements referred to in Section 3.6(b)(ii), including any
amendments thereto, shall be signed by or on behalf of a majority of the
Administrative Trustees; and
(c) 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 purposes of signing any documents which the Administrative
Trustees have power and authority to cause the Trust to execute pursuant to
Section 3.6.
SECTION 3.5 Title to Property of the Trust.
Except as provided in Section 3.8 with respect to the Debentures and the
Property Account or as otherwise provided in this Trust Agreement, legal title
to all assets of the Trust shall be vested in the Trust. The Holders shall not
have legal title to any part of the assets of the Trust, but shall have an
undivided beneficial ownership interest in the assets of the Trust.
SECTION 3.6 Powers and Duties of the Administrative Trustees.
The Administrative Trustees shall have the exclusive power, duty and
authority to cause the Trust to engage in the following activities:
(a) issue and sell the Preferred Securities and the Common Securities in
accordance with this Trust Agreement; provided, however, that the Trust may
issue no more than one series of Preferred Securities and no more than one
series of Common Securities, and, provided further, that there shall be no
interests in the Trust other than the Securities, and, except as provided in
Section 7.13, the issuance of Securities shall be limited to a one-time,
simultaneous issuance of both Preferred Securities and Common Securities on the
Closing Date;
(b) in connection with the issue and sale of the Preferred Securities, at
the direction of the Sponsor, to:
(i) execute and file an application, prepared by the Sponsor, to the
New York Stock Exchange or any other national stock exchange or automated
quotation system for listing of any Preferred Securities, the Guarantee and the
Debentures;
(ii) execute and file with the Commission one or more registration
statements on the applicable forms prepared by the Sponsor, including any
amendments thereto, pertaining to the Preferred Securities, the Guarantee and
the Debentures;
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(iii) execute and file any documents prepared by the Sponsor, or take
any acts as determined by the Sponsor to be necessary, in order to qualify or
register all or part of the Preferred Securities in any State in which the
Sponsor has determined to qualify or register such Preferred Securities for
sale; and
(iv) negotiate the terms of and execute and enter into an underwriting
agreement and other related agreements providing for the sale of the Preferred
Securities;
(c) to acquire the Debentures with the proceeds of the sale of the
Preferred Securities and the Common Securities; provided, however, that the
Administrative Trustees shall cause legal title to the Debentures to be held of
record in the name of the Property Trustee for the benefit of the Holders of the
Preferred Securities and the Holders of the Common Securities;
(d) to give the Sponsor and the Property Trustee prompt written notice of
the occurrence of a Special Event; provided that the Administrative Trustee s
shall consult with the Sponsor before taking or refraining from taking any
action in relation to any such Special Event;
(e) to establish a record date with respect to all actions to be taken
hereunder that require a record date be established, including and with respect
to, for the purposes of Section 316(c) of the Trust Indenture Act,
Distributions, voting rights, redemptions and exchanges, and to issue relevant
notices to the Holders of Preferred Securities and Holders of Common Securities
as to such actions and applicable record dates;
(f) to take all actions and perform such duties as may be required of the
Administrative Trustees pursuant to the terms of this Trust Agreement and the
Securities;
(g) to bring or defend, pay, collect, compromise, arbitrate, resort to
legal action or otherwise adjust claims or demands of or against the Trust
("Legal Action"), unless pursuant to Section 3.8(e), the Property Trustee has
the exclusive power to bring such Legal Action;
(h) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors and
consultants to conduct only those services that the Administrative Trustees have
authority to conduct directly, and to and pay reasonable compensation for such
services;
(i) to cause the Trust to comply with the Trust's obligations under the
Trust Indenture Act;
(j) to give the certificate required by Section 314(a)(4) of the Trust
Indenture Act to the Property Trustee, which certificate may be executed by any
Administrative Trustee;
(k) to incur expenses that are necessary or incidental to carry out any of
the purposes of the Trust;
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(l) to act as, or appoint another Person to act as, registrar and transfer
agent for the Securities;
(m) to give prompt written notice to the Holders of the Securities of any
notice received from the Debenture Issuer of its election to defer payments of
interest on the Debentures by extending the interest payment period under the
Debentures as authorized by the Indenture;
(n) to take all action that may be necessary or appropriate for the
preservation and the continuation of the Trust's valid existence, rights,
franchises and privileges as a statutory business trust under the laws of the
State of Delaware and of each other jurisdiction in which such existence is
necessary to protect the limited liability of the Holders of the Preferred
Securities and the Holders of the Common Securities or to enable the Trust to
effect the purposes for which the Trust was created;
(o) to take any action, not inconsistent with applicable law, that the
Administrative Trustees determine in their discretion to be necessary or
desirable in carrying out the purposes and functions of the Trust as set out in
Section 3.3 or the activities of the Trust as set out in this Section 3.6,
including, but not limited to:
(i) causing the Trust not to be deemed to be an Investment Company
required to be registered under the Investment Company Act;
(ii) causing the Trust to be classified as a grantor trust for United
States federal income tax purposes; and
(iii) cooperating with the Debenture Issuer to ensure that the
Debentures will be treated as indebtedness of the Debenture Issuer for United
States federal income tax purposes.
(p) to take all action necessary to cause all applicable tax returns and
tax information reports that are required to be filed with respect to the Trust
to be duly prepared and filed by the Administrative Trustees, on behalf of the
Trust; and
(q) to execute and deliver all documents or instruments, perform all duties
and powers, and do all things for and on behalf of the Trust in all matters
necessary or incidental to the foregoing.
The Administrative Trustees shall exercise the powers set forth in this
Section 3.6 in a manner that is consistent with the purposes and functions of
the Trust set out in Section 3.3, and the Administrative Trustees shall have no
power to, and shall not, take any action that is inconsistent with the purposes
and functions of the Trust set forth in Section 3.3.
Subject to this Section 3.6, the Administrative Trustees shall have none of
the powers or the authority of the Property Trustee set forth in Section 3.8.
Any expenses incurred by the Administrative Trustees pursuant to this
Section 3.6 shall be reimbursed by the Debenture Issuer.
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SECTION 3.7 Prohibition of Actions by the Trust and the Trustees.
(a) The Trust shall not, and none of the Trustees (including the Property
Trustee) shall cause the Trust to, engage in any activity other than as required
or authorized by this Trust Agreement. In particular, the Trust shall not and
none of the Trustees (including the Property Trustee) shall cause the Trust to:
(i) invest any proceeds received by the Trust from holding the
Debentures, but shall distribute all such proceeds to Holders of Securities
pursuant to the terms of this Trust Agreement and of the Securities;
(ii) acquire any assets other than as expressly provided herein;
(iii) possess Trust property for other than a Trust purpose;
(iv) make any loans other than loans represented by the Debentures or
incur any indebtedness;
(v) possess any power or otherwise act in such a way as to vary the
Trust assets;
(vi) possess any power or otherwise act in such a way as to vary the
terms of the Securities in any way whatsoever (except to the extent expressly
authorized in this Trust Agreement or by the terms of the Securities);
(vii) issue any securities or other evidences of beneficial ownership of,
or beneficial interest in, the Trust other than the Securities;
(viii) other than as provided in this Trust Agreement or by the terms of
the Securities, (A) direct the time, method and place of exercising any trust or
power conferred upon the Indenture Trustee with respect to the Debentures, (B)
waive any past default that is waivable under the Indenture, (C) exercise any
right to rescind or annul any declaration that the principal of all the
Debentures shall be due and payable, or (D) consent to any amendment,
modification or termination of the Indenture or the Debentures where such
consent shall be required unless the Trust shall have received an opinion of
counsel to the effect that such amendment or modification will not cause more
than an insubstantial risk that the Trust will be deemed an Investment Company
required to be registered under the Investment Company Act, or the Trust will
not be classified as a grantor trust for United States federal income tax
purposes;
(ix) take any action inconsistent with the status of the Trust as a
grantor trust for United States federal income tax purposes; or
(x) revoke any action previously authorized or approved by vote of the
Holders of the Preferred Securities except pursuant to a subsequent vote of the
Holders of the Preferred Securities.
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SECTION 3.8 Powers and Duties of the Property Trustee.
(a) The legal title to the Debentures shall be owned by and held of record
in the name of the Property Trustee for the benefit of the Trust and the Holders
of the Securities. The right, title and interest of the Property Trustee to the
Debentures shall vest automatically in each Person who may hereafter be
appointed as Property Trustee in accordance with Section 6.6. Such vesting and
cessation of title shall be effective whether or not conveyancing documents with
regard to the Debentures have been executed and delivered.
(b) The Property Trustee shall not transfer its right, title and interest
in the Debentures to the Administrative Trustees or to the Delaware Trustee (if
the Property Trustee does not also act as Delaware Trustee).
(c) The Property Trustee shall:
(i) establish and maintain a segregated non-interest bearing trust
account (the "Property Account") in the name of and under the exclusive control
of the Property Trustee on behalf of the Holders of the Securities and, upon the
receipt of payments of funds made in respect of the Debentures held by the
Property Trustee, deposit such funds into the Property Account and make payments
to the Holders of the Preferred Securities and Holders of the Common Securities
from the Property Account in accordance with Section 7.2. Funds in the Property
Account shall be held uninvested until disbursed in accordance with this Trust
Agreement. The Property Account shall be an account that is maintained with a
banking institution the rating on whose long-term unsecured indebtedness is at
least equal to the rating assigned to the Preferred Securities by a "nationally
recognized statistical rating organization", within the meaning of Rule
436(g)(2) under the Securities Act;
(ii) engage in such ministerial activities as shall be necessary or
appropriate to effect the redemption of the Preferred Securities and the Common
Securities to the extent the Debentures are redeemed or mature; and
(iii) upon written notice of distribution issued by the Administrative
Trustees in accordance with the terms of the Securities, engage in such
ministerial activities as so directed and as shall be necessary or appropriate
to effect the distribution of the Debentures to Holders of Securities upon the
occurrence of a Special Event.
(d) The Property Trustee shall take all actions and perform such duties as
may be specifically required of the Property Trustee pursuant to the terms of
this Trust Agreement and the Securities.
(e) Subject to Section 3.9(a) the Property Trustee may take any Legal
Action which arises out of or in connection with a Trust Enforcement Event of
which a Responsible Officer of the Property Trustee has actual knowledge or the
Property Trustee's duties and obligations under this Trust Agreement or the
Trust Indenture Act; PROVIDED, HOWEVER, that if a Trust Enforcement Event has
occurred and is continuing and such event is attributable to the failure of the
Debenture Issuer to pay interest, principal or other required payments on the
Debentures on
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the date such interest, principal or other required payments are otherwise
payable (or in the case of redemption, on the redemption date), then a Holder of
Preferred Securities may directly institute a proceeding against the Debenture
Issuer for enforcement of payment to such Holder of the principal of or interest
on Debentures having a principal amount equal to the aggregate liquidation
amount of the Preferred Securities of such Holder (a "Direct Action") on or
after the respective due date specified in the Debentures. Notwithstanding
anything to the contrary in this Trust Agreement or the Indenture, the Debenture
Issuer shall have the right to set-off any payment it is otherwise required to
make under the Indenture in respect of any Preferred Security to the extent the
Debenture Issuer has heretofore made, or is currently on the date of such
payment making, a payment under the Guarantee relating to such Preferred
Security or under Section 6.5 of the Indenture.
(f) The Property Trustee shall continue to serve as a Trustee until either:
(i) the Trust has been completely liquidated and the proceeds of the
liquidation distributed to the Holders of Securities pursuant to the terms of
the Securities; or
(ii) a Successor Property Trustee has been appointed and has accepted
that appointment in accordance with Section 6.6.
(g) The Property Trustee shall have the legal power to exercise all of the
rights, powers and privileges of a holder of Debentures under the Indenture and,
if a Trust Enforcement Event actually known to a Responsible Officer of the
Property Trustee occurs and is continuing, the Property Trustee may, for the
benefit of Holders of the Securities, enforce its rights as holder of the
Debentures subject to the rights of the Holders pursuant to this Trust Agreement
and the terms of the Securities.
(h) The Property Trustee may authorize one or more Persons (each, a "Paying
Agent") to pay Distributions, redemption payments or liquidation payments on
behalf of the Trust with respect to all Securities and any such Paying Agent
shall comply with Section 317(b) of the Trust Indenture Act. Any Paying Agent
may be removed by the Property Trustee at any time and a successor Paying Agent
or additional Paying Agents may be appointed at any time by the Property
Trustee.
(i) Subject to this Section 3.8, the Property Trustee shall have none of
the duties, liabilities, powers or the authority of the Administrative Trustees
set forth in Section 3.6.
The Property Trustee shall exercise the powers set forth in this Section
3.8 in a manner that is consistent with the purposes and functions of the Trust
set out in Section 3.3, and the Property Trustee shall have no power to, and
shall not, take any action that is inconsistent with the purposes and functions
of the Trust set out in Section 3.3.
SECTION 3.9 Certain Duties and Responsibilities of the Property Trustee.
(a) The Property Trustee, before the occurrence of any Trust Enforcement
Event and after the curing of all Trust Enforcement Events that may have
occurred, shall undertake to perform
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only such duties as are specifically set forth in this Trust Agreement and no
implied covenants shall be read into this Trust Agreement against the Property
Trustee. In case a Trust Enforcement Event has occurred (that has not been cured
or waived pursuant to Section 2.6) of which a Responsible Officer of the
Property Trustee has actual knowledge, the Property Trustee shall exercise such
of the rights and powers vested in it by this Trust Agreement, and use the same
degree of care and skill in their exercise, as a prudent person would exercise
or use under the circumstances in the conduct of his or her own affairs.
(b) 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 willful misconduct, except that:
(i) prior to the occurrence of a Trust Enforcement Event and after
the curing or waiving of all such Trust Enforcement Events that may have
occurred:
a. the duties and obligations of the Property Trustee shall be determined solely
by the express provisions of this Trust Agreement and the Property Trustee shall
not be liable except for the performance of such duties and obligations as are
specifically set forth in this Trust Agreement, and no implied covenants or
obligations shall be read into this Trust Agreement against the Property
Trustee; and
b. in the absence of bad faith on the part of the Property Trustee, the Property
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 Property Trustee and conforming to the requirements of this
Trust Agreement; but in the case of any such certificates or opinions that by
any provision hereof are specifically required to be furnished to the Property
Trustee, the Property Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this Trust
Agreement;
(ii) the Property Trustee shall not be liable for any error of
judgment made in good faith by a Responsible 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 without negligence, in good faith in
accordance with the direction of the Holders of not less than a Majority in
Liquidation Amount of the Securities relating to the time, method and place of
conducting any proceeding for any remedy available to the Property Trustee, or
exercising any trust or power conferred upon the Property Trustee under this
Trust Agreement;
(iv) no provision of this Trust Agreement shall require the Property
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if it shall have reasonable grounds for believing that the
repayment of such funds or liability is not reasonably assured to it under the
terms of this Trust Agreement or indemnity reasonably satisfactory to the
Property Trustee against such risk or liability is not reasonably assured to it;
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(v) the Property Trustee's sole duty with respect to the custody,
safe-keeping and physical preservation of the Debentures and the Property
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;
(vi) the Property Trustee shall have no duty or liability for or with
respect to the value, genuineness, existence or sufficiency of the Debentures or
the payment of any taxes or assessments levied thereon or in connection
therewith;
(vii) the Property Trustee shall not be liable for any interest on any
money received by it except as it may otherwise agree with the Sponsor. Money
held by the Property Trustee need not be segregated from other funds held by it
except in relation to the Property Account maintained by the Property Trustee
pursuant to Section 3.8(c)(i) and except to the extent otherwise required by
law; and
(viii) the Property Trustee shall not be responsible for monitoring the
compliance by the Administrative Trustees or the Sponsor with their respective
duties under this Trust Agreement, nor shall the Property Trustee be liable for
any default or misconduct of the Administrative Trustees or the Sponsor.
SECTION 3.10 Certain Rights of Property Trustee.
(a) Subject to the provisions of Section 3.9:
(i) the Property Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other paper or
document 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 Sponsor or the Administrative
Trustees contemplated by this Trust Agreement shall be sufficiently evidenced by
an Officers' Certificate;
(iii) whenever in the administration of this Trust Agreement, the
Property Trustee shall deem it desirable that a matter be proved or established
before taking, 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 conclusively rely upon an Officers'
Certificate which, upon receipt of such request, shall be promptly delivered by
the Sponsor or the Administrative Trustees;
(iv) 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 registration thereof;
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(v) the Property Trustee may consult with counsel of its choice or other
experts and the advice or opinion of such counsel and experts with respect to
legal matters or advice within the scope of such experts' area of expertise
shall be full and complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in accordance with
such advice or opinion, such counsel may be counsel to the Property Trustee or
the Sponsor or any of its Affiliates, and may include any of its employees. The
Property Trustee shall have the right at any time to seek instructions
concerning the administration of this Trust Agreement from any court of
competent jurisdiction;
(vi) 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 Holder, unless such Holder shall have provided to the Property
Trustee security and indemnity, reasonably satisfactory to the Property Trustee,
against the costs, expenses (including attorneys' fees and expenses and the
expenses of the Property Trustee's agents, nominees or custodians) 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
Property Trustee; provided that, nothing contained in this Section 3.10(a) shall
be taken to relieve the Property Trustee, upon the occurrence of a Trust
Enforcement Event, of its obligation to exercise the rights and powers vested in
it by this Trust Agreement in the manner provided by Section 3.9(a);
(vii) 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, bond,
debenture, note, other evidence of indebtedness or other paper or document, but
the Property Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit;
(viii) the Property Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents, custodians, nominees or attorneys and the Property Trustee shall not be
responsible for any misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder;
(ix) any action taken by the Property Trustee or its agents hereunder shall
bind the Trust and the Holders of the Securities, and the signature of the
Property Trustee or its agents alone shall be sufficient and effective to
perform any such action and no third party shall be required to inquire as to
the authority of the Property Trustee to so act or as to its compliance with any
of the terms and provisions of this Trust Agreement, both of which shall be
conclusively evidenced by the Property Trustee's or its agent's taking such
action;
(x) 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 Securities which
instructions may only be given by the Holders of the same proportion in
liquidation amount of the Securities as would been entitled to direct the
Property Trustee under the terms of the 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
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received, and (iii) shall be protected in conclusively relying on or acting in
or accordance with such instructions;
(xi) 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;
(xii) the Property Trustee shall not be personally liable for the
payment of any indebtedness or expenses of the Trust or be liable for the breach
or failure of any obligation, representation, warranty or covenant made or
undertaken by the Trust under this Trust Agreement, except if such breach or
failure is due to any gross negligence or willful misconduct of the Delaware
Trustee.;
(xiii) without prejudice to any other rights available to the Property
Trustee under applicable law, when the Property Trustee incurs expenses or
renders services in connection with a bankruptcy, such expenses (including the
fees and expenses of its counsel) and the compensation for such services are
intended to constitute expenses of administration under any bankruptcy law or
law relating to creditors rights generally;
(xiv) the Property Trustee shall not be charged with knowledge of a
Trust Enforcement Event unless a Responsible Officer of the Property Trustee
obtains actual knowledge of such event or the Property Trustee receives written
notice of such event from Holders holding more than a Majority in Liquidation
Amount of the Preferred Securities; and
(b) 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.
SECTION 3.11 Delaware Trustee.
Notwithstanding any other provision of this Trust Agreement other than
Section 6.2, 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 Administrative Trustees or the Property Trustee described in this Trust
Agreement. Except as set forth in Section 6.2, the Delaware Trustee shall be a
Trustee for the sole and limited purpose of fulfilling the requirements of
Section 3807(a) of the Business Trust Act. In the event the Delaware Trustee
shall at any time be required to take any action or perform any duty hereunder
with respect to the Trust, the Delaware Trustee shall be entitled to all of the
same rights as the Property Trustee listed in Section 3.9(b) and Section 3.10.
No implied covenants or obligations shall be read into this Trust Agreement
against the Delaware Trustee. It is expressly understood and agreed by the
parties hereto that in fulfilling its obligations as Delaware Trustee hereunder
on behalf of the Trust (i) any agreements or instruments executed and delivered
by Chase Manhattan Bank Delaware are executed and delivered not in its
individual capacity but solely as Delaware Trustee under this Trust
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Agreement in the exercise of the powers and authority conferred and vested in
it, (ii) each of the representations, undertakings and agreements herein made on
the part of the Trust is made and intended not as representations, warranties,
covenants, undertakings and agreements by Chase Manhattan Bank Delaware in its
individual capacity but is made and intended for the purpose of binding only the
Trust, and (iii) under no circumstances shall Chase Manhattan Bank Delaware in
its individual capacity be personally liable for the payment of any indebtedness
or expenses of the Trust or be liable for the breach or failure of any
obligation, representation, warranty or covenant made or undertaken by the Trust
under this Trust Agreement, except if such breach or failure is due to any gross
negligence or willful misconduct of the Delaware Trustee.
SECTION 3.12 Execution of Documents.
Unless otherwise determined by the Administrative Trustees, and except as
otherwise required by the Business Trust Act or applicable law, any
Administrative Trustee is authorized to execute on behalf of the Trust any
documents that the Administrative Trustees have the power and authority to
execute pursuant to Section 3.6; provided that, the registration statements
referred to in Section 3.6(b)(ii), including any amendments thereto, shall be
signed by or on behalf of a majority of the Administrative Trustees.
SECTION 3.13 Not Responsible for Recitals or Issuance of Securities.
The recitals contained in this Trust Agreement and the Securities shall be
taken as the statements of the Sponsor, and the Trustees do not assume any
responsibility for their correctness. The Trustees make no representations as to
the value or condition of the property of the Trust or any part thereof. The
Trustees make no representations as to the validity or sufficiency of this Trust
Agreement, the Securities, the Debentures or the Indenture.
SECTION 3.14 Duration of Trust.
The Trust shall exist until terminated pursuant to the provisions of
Article 8 hereof.
SECTION 3.15 Mergers.
(a) The Trust may not 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 Person, except as described in Section
3.15(b) and (c) or Section 8.2.
(b) The Trust may, at the request of the Sponsor and with the consent of
the Administrative Trustees or, if there are more than two, a majority of the
Administrative Trustees and without the consent of the Holders of the
Securities, the Delaware Trustee or the Property Trustee, consolidate,
amalgamate, merge with or into, or be replaced by or convey, transfer or lease
its properties substantially as an entirety to a trust organized as such under
the laws of any State; provided, that:
(i) if the Trust is not the successor, such successor entity (the
"Successor Entity") either:
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a. expressly assumes all of the obligations of the Trust with respect to the
Securities; or
b. substitutes for the Preferred Securities other securities having
substantially the same terms as the Preferred Securities (the "Successor
Securities") so long as the Successor Securities rank the same as the Preferred
Securities rank in priority with respect to Distributions and payments upon
liquidation, redemption and otherwise;
(ii) if the Trust is not the successor Entity, the Sponsor expressly
appoints a trustee of such Successor Entity that possesses the same powers and
duties as the Property Trustee as the holder of the Debentures;
(iii) the Preferred Securities or any Successor Securities are listed, or
any Successor Securities will be listed upon notification of issuance, on any
national securities exchange or with any other or organization on which the
Preferred Securities are then listed or quoted;
(iv) such merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease does not cause the Preferred 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 Preferred Securities (including any Successor
Securities) in any material respect;
(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 Sponsor has received an opinion of 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 Preferred Securities (including any Successor Securities) in any
material respect;
b. following such merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease neither the Trust nor the Successor Entity will be required to
register as an Investment Company; and
c. following such merger, consolidation, amalgamation or replacement, the Trust
(or the Successor Entity) will continue to be classified as a grantor trust for
United States federal income tax purposes;
(viii) the Sponsor or any permitted successor or assignee owns all of the
common securities and guarantees the obligations of such Successor Entity under
the Successor Securities at least to the extent provided by the Guarantee; and
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(ix) such Successor Entity expressly assumes all of the obligations of
the Trust with respect to the Trustees.
(c) Notwithstanding Section 3.15(b), the Trust shall not, except with the
consent of Holders of 100% in aggregate liquidation amount of the 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 Successor
Entity to be classified as other than a grantor trust for United States federal
income tax purposes and each Holder of the Securities not to be treated as
owning an undivided interest in the Debentures.
SECTION 3.16 Property Trustee May File Proofs of Claim.
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
Securities or the property of the Trust or of such other obligor or their
creditors, the Property Trustee (irrespective of whether any Distributions on
the 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)
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
owing and unpaid in respect of the Securities (or, if the Securities are
original issue discount Securities, such portion of the liquidation amount as
may be specified in the terms of such 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;
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.
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 compensation affecting the
Securities or the rights of any Holder thereof or to
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authorize the Property Trustee to vote in respect of the claim of any Holder in
any such proceeding.
ARTICLE 4
SPONSOR
SECTION 4.1 Responsibilities of the Sponsor.
In connection with the issue and sale of the Preferred Securities, the
Sponsor shall have the exclusive right and responsibility to engage in the
following activities:
(a) to prepare for filing by the Trust with the Commission under the
Securities Act or the Exchange Act one or more registration statements on the
applicable forms, including any amendments thereto, pertaining to the Preferred
Securities, the Guarantee and the Debentures;
(b) to determine the States in which to take appropriate action to qualify
or register for sale all or part of the Preferred Securities and to do any and
all such acts, other than actions which must be taken by the Trust, and advise
the Trust of actions it must take, and prepare for execution and filing any
documents to be executed and filed by the Trust, as the Sponsor deems necessary
or advisable in order to comply with the applicable laws of any such States;
(c) to prepare for filing by the Trust an application to the New York Stock
Exchange, Inc. or any other national stock exchange or the NASDAQ Stock Market
for listing upon notice of issuance of any Preferred Securities, the Guarantee
and the Debentures; and
(d) to negotiate the terms of and to execute on behalf of the Trust an
underwriting agreement and other related agreements providing for the sale of
the Preferred Securities.
SECTION 4.2 Indemnification and Fees and Expenses of the Trustees.
The Sponsor, in its capacity as Debenture Issuer, agrees (a) to pay to the
Property Trustee and the Delaware Trustee from time to time such compensation as
shall be agreed in writing with the Sponsor for all services rendered by them
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) to reimburse the Property Trustee and the Delaware Trustee upon request
for all reasonable expenses, disbursements and advances incurred or made by such
Trustee in accordance with any provision of this Trust Agreement (including the
reasonable compensation and the reasonable expenses and disbursements of their
duly authorized agents and counsel), except any such expense, disbursement or
advance as may be attributable to their negligence or bad faith; and to
indemnify the Property Trustee and the Delaware Trustee for, and to hold each of
them harmless against, any loss, liability or expense incurred without
negligence or bad faith on the part of the Property Trustee or the Delaware
Trustee, as the case may be, arising out of or in connection with the acceptance
or administration of the trust or trusts hereunder, including the
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costs and expenses of defending either of them against any claim or liability in
connection with the exercise or performance of any of their respective powers or
duties hereunder; the provisions of this Section 4.2 shall survive the
resignation or removal of the Delaware Trustee or the Property Trustee or the
termination of this Trust Agreement.
ARTICLE 5
TRUST COMMON SECURITIES HOLDER
SECTION 5.1 Debenture Issuer's Purchase of Common Securities.
On the applicable Closing Date, the Debenture Issuer will purchase all of
the Common Securities issued by the Trust on such Closing Date, for an amount at
least equal to 3% of the capital of the Trust at such time, at the same time as
Preferred Securities are sold; PROVIDED that, if the Option set forth in Section
7.13(a) is exercised, then the Debenture Issuer will purchase such additional
Common Securities from the Trust on such second Closing Date such that it will
then hold at least 3% of the capital of the Trust.
The aggregate stated liquidation amount of Common Securities outstanding at
any time shall not be less than 3% of the capital of the Trust.
SECTION 5.2 Covenants of the Common Securities Holder.
For so long as the Preferred Securities remain outstanding, the Common
Securities Holder will covenant (i) to maintain, directly or indirectly, 100%
ownership of the Common Securities, (ii) to cause the Trust to remain a
statutory business trust and not to voluntarily dissolve, wind up, liquidate or
be terminated, except as permitted by this Trust Agreement, (iii) to use its
commercially reasonable efforts to ensure that the Trust will not be an
investment company for purposes of the Investment Company Act, and (iv) to take
no action which would be reasonably likely to cause the Trust to be classified
as an association or a publicly traded partnership taxable as a corporation for
United States federal income tax purposes.
ARTICLE 6
TRUSTEES
SECTION 6.1 Number of Trustees.
The number of Trustees initially shall be five, and:
(a) at any time before the issuance of any Securities, the Sponsor may, by
written instrument, increase or decrease the number of Trustees; and
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(b) after the issuance of any Securities, the number of Trustees may be
increased or decreased by vote of the Holders of a Majority in Liquidation
Amount of the Common Securities voting as a class at a meeting of the Holders of
the Common Securities or by written consent in lieu of such meeting; provided
that the number of Trustees shall be at least three; and provided further that
(i) the Delaware Trustee, in the case of a natural person, shall be a person who
is a resident of the State of Delaware or that, if not a natural person, is an
entity which has its principal place of business in the State of Delaware and
otherwise meets the requirements of applicable law; (ii) at least one
Administrative Trustee is an employee or officer of, or is affiliated with, the
Sponsor; and (iii) one Trustee shall be the Property Trustee for so long as this
Trust Agreement is required to qualify as an indenture under the Trust Indenture
Act, and such Trustee may also serve as Delaware Trustee if it meets the
applicable requirements.
SECTION 6.2 Delaware Trustee; Eligibility.
If required by the Business Trust Act, one Trustee (which may be the
Property Trustee) (the "Delaware Trustee") shall be:
(a) a natural person who is a resident of the State of Delaware; or
(b) if not a natural person, an entity which has its principal place of
business in the State of Delaware, and otherwise meets the requirements of
applicable law, provided that, if the Property Trustee has its principal place
of business in the State of Delaware and otherwise meets the requirements of
applicable law, then the Property Trustee shall also be the Delaware Trustee and
Section 3.11 shall have no application.
SECTION 6.3 Property Trustee; Eligibility.
(a) There shall at all times be one Trustee (which may be the Delaware
Trustee) which shall act as Property Trustee which shall:
(i) not be an Affiliate of the Sponsor; and
(ii) be a corporation organized and doing business under the laws of
the United States of America or any State or Territory thereof or of the
District of Columbia, or a corporation or other Person permitted by the
Commission to act as an institutional trustee under the Trust Indenture Act,
authorized under such laws to exercise corporate trust owners, having a combined
capital and surplus of at least 50 million U.S. dollars ($50,000,000), and
subject to supervision or examination by federal, State, Territorial or District
of Columbia authority. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of the supervising or
examining authority referred to above, then for the purposes of this Section
6.3(a)(ii), 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.
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(b) If at any time the Property Trustee shall cease to be eligible to so
act under Section 6.3(a), the Property Trustee shall immediately resign in the
manner and with the effect set forth in Section 6.6(c).
(c) If the Property Trustee has or shall acquire any "conflicting interest"
within the meaning of Section 310(b) of the Trust Indenture Act, the Property
Trustee and the Holder of the Common Securities (as if it were the obligor
referred to in Section 310(b) of the Trust Indenture Act) shall in all respects
comply with the provisions of Section 310(b) of the Trust Indenture Act, subject
to the penultimate paragraph thereof.
(d) The Guarantee, the Amended and Restated Trust Agreement of Dominion
Resources Capital Trust I dated as of December 8, 1997 among the Sponsor, The
Chase Manhattan Bank, as Property Trustee, Chase Manhattan Bank Delaware, as
Delaware Trustee and the Administrators named therein, and the Capital
Securities Guarantee Agreement dated as of December 8, 1997, between the Sponsor
and The Chase Manhattan Bank, as Guarantee Trustee shall be deemed to be
specifically described in this Trust Agreement for purposes of clause (i) of the
first proviso contained in Section 310(b) of the Trust Indenture Act.
SECTION 6.4 Qualifications of Administrative Trustees and Delaware Trustee
Generally.
Each Administrative Trustee and the Delaware Trustee (unless the Property
Trustee also acts as Delaware 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
Authorized Officers.
SECTION 6.5 Initial Administrative Trustees.
The initial Administrative Trustees shall be: __________, ___________ and
__________, the business address of all of whom is c/o Dominion Resources, Inc.,
120 Tredegar Street, Richmond, Virginia 23219.
SECTION 6.6 Appointment, Removal and Resignation of Trustees.
(a) Subject to Section 6.6(b), Trustees may be appointed or removed without
cause at any time:
(i) until the issuance of any Securities, by written instrument
executed by the Sponsor;
(ii) after the issuance of any Securities (but prior to the occurrence
of an Indenture Event of Default), by vote of the Holders of a Majority in
Liquidation Amount of the Common Securities voting as a class at a meeting of
the Holders of the Common Securities; and;
(iii) after the issuance of the Preferred Securities and the occurrence
of an Indenture Event of Default, by vote of the Holders of a Majority in
Liquidation Amount of the Preferred Securities; provided, however, that the
Administrative Trustees may still be appointed or
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removed without cause in such circumstance, by vote of the Holders of a Majority
in Liquidation Amount of the Common Securities voting as a class at a meeting of
the Holders of the Common Securities; and;
(b) The Trustee that acts as Property Trustee shall not be removed in
accordance with Section 6.6(a) until a successor Trustee possessing the
qualifications to act as Property Trustee under Section 6.3(a) (a "Successor
Property Trustee") has been appointed and has accepted such appointment by
written instrument executed by such Successor Property Trustee and delivered to
the Administrative Trustees and the Sponsor. The Trustee that acts as Delaware
Trustee shall not be removed in accordance with Section 6.6(a) until a successor
Trustee possessing the qualifications to act as Delaware Trustee under Sections
6.2 and 6.4 (a "Successor Delaware Trustee") has been appointed and has accepted
such appointment by written instrument executed by such Successor Delaware
Trustee and delivered to the Administrative Trustees and the Sponsor.
(c) A Trustee appointed to office shall hold office until his or its
successor shall have been appointed, until his death or its dissolution or until
his or its removal or resignation. Any Trustee may resign from office (without
need for prior or subsequent accounting) by an instrument in writing signed by
the Trustee and delivered to the Sponsor and the Trust, which resignation shall
take effect upon such delivery or upon such later date as is specified therein;
provided, however, that:
(i) No such resignation of the Trustee that acts as the Property
Trustee shall be effective:
a. until a Successor Property Trustee has been appointed and has accepted such
appointment by instrument executed by such Successor Property Trustee and
delivered to the Trust, the Sponsor and the resigning Property Trustee; or
b. until the assets of the Trust have been completely liquidated and the
proceeds thereof distributed to the holders of the Securities; and
(ii) no such resignation of the Trustee that acts as the Delaware
Trustee shall be effective until a Successor Delaware Trustee has been appointed
and has accepted such appointment by instrument executed by such Successor
Delaware Trustee and delivered to the Trust, the Sponsor and the resigning
Delaware Trustee.
(d) The Holders of the Common Securities shall use their best efforts to
promptly appoint a Successor Delaware Trustee or Successor Property Trustee, as
the case may be, if the Property Trustee or the Delaware Trustee delivers an
instrument of resignation in accordance with this Section 6.6.
(e) If no Successor Property Trustee or Successor Delaware Trustee, as the
case may be, shall have been appointed and accepted appointment as provided in
this Section 6.6 within 60 days after delivery to the Sponsor and the Trust of
an instrument of resignation or removal, the resigning or removed Property
Trustee or Delaware Trustee, as applicable, may petition any
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court of competent jurisdiction for appointment of a Successor Property Trustee
or Successor Delaware Trustee, as applicable. Such court may thereupon, after
prescribing such notice, if any, as it may deem proper, appoint a Successor
Property Trustee or Successor Delaware Trustee, as the case may be.
(f) No Property Trustee or Delaware Trustee shall be liable for the acts or
omissions to act of any Successor Property Trustee or Successor Delaware
Trustee, as the case may be.
SECTION 6.7 Vacancies among Trustees.
If a Trustee ceases to hold office for any reason and the number of
Trustees is not reduced pursuant to Section 6.1, or if the number of Trustees is
increased pursuant to Section 6.1, a vacancy shall occur. A resolution
certifying the existence of such vacancy by the Administrative Trustees or, if
there are more than two, a majority of the Administrative Trustees shall be
conclusive evidence of the existence of such vacancy. The vacancy shall be
filled with a Trustee appointed in accordance with Section 6.6.
SECTION 6.8 Effect of Vacancies.
The death, resignation, retirement, removal, bankruptcy, dissolution,
liquidation, incompetence or incapacity to perform the duties of a Trustee shall
not operate to annul, dissolve or terminate 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 6.6, the
Administrative Trustees in office, regardless of their number, shall have all
the powers granted to the Administrative Trustees and shall discharge all the
duties imposed upon the Administrative Trustees by this Trust Agreement.
SECTION 6.9 Meetings.
If there is more than one Administrative Trustee, meetings of the
Administrative Trustees shall be held from time to time upon the call of any
Administrative Trustee. Regular meetings of the Administrative Trustees may be
held at a time and place fixed by resolution of the Administrative Trustees.
Notice of any in-person meetings of the Administrative Trustees shall be hand
delivered or otherwise delivered in writing (including by facsimile, with a hard
copy by overnight courier) not less than 48 hours before such meeting. Notice of
any telephonic meetings of the Administrative Trustees shall be hand delivered
or otherwise delivered in writing (including by facsimile, with a hard copy by
overnight courier) not less than 24 hours before a meeting. Notices shall
contain a brief statement of the time, place and anticipated purposes of the
meeting. The presence (whether in person or by telephone) of an Administrative
Trustee at a meeting shall constitute a waiver of notice of such meeting except
where an Administrative Trustee attends a meeting for the express purpose of
objecting to the transaction of any activity on the ground that the meeting has
not been lawfully called or convened. Unless provided otherwise in this Trust
Agreement, any action of the Administrative Trustees may be taken at a meeting
by vote of a majority of the Administrative Trustees present (whether in person
or by telephone) and eligible to vote with respect to such matter, provided that
a Quorum is present, or without a meeting by the unanimous written consent of
the Administrative Trustees. In the event
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there is only one Administrative Trustee, any and all action of such
Administrative Trustee shall be evidenced by a written consent of such
Administrative Trustee.
SECTION 6.10 Delegation of Power.
(a) Any Administrative Trustee may, by power of attorney consistent with
applicable law, delegate to any natural person over the age of 21 his, her or
its power for the purpose of executing any documents contemplated in Section
3.6, including any registration statement or amendment thereto filed with the
Commission, or making any other governmental filing.
(b) The Administrative Trustees shall have power to delegate from time to
time to such of their number or to officers of the Trust the doing of such
things and the execution of such instruments either in the name 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 the Trust, as set forth herein.
SECTION 6.11 Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Property Trustee, the Delaware Trustee or
any Administrative Trustee that is not a natural person may be merged or
converted or with such Trustee may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Trustee shall be a
party, or any corporation succeeding to all or substantially all the corporate
trust business of such Trustee shall be the successor of such Trustee hereunder,
provided such corporation 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.
ARTICLE 7
TERMS OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities.
(a) The Administrative Trustees shall on behalf of the Trust shall issue
one class of preferred securities representing undivided beneficial ownership
interests in the assets of the Trust and one class of common securities
representing undivided beneficial ownership interests in the assets of the
Trust.
(i) Preferred Securities. The Preferred Securities of the Trust have
an aggregate liquidation amount with respect to the assets of the Trust of
__________________________________ dollars ($__________________________) with
respect to the initial closing of the sale of Preferred Securities [and, if the
Option set forth in Section 7.13(a) is exercised, an additional aggregate
liquidation amount with respect to the assets of the Trust of __________ dollars
($__________) with respect to the second closing of the sale of Preferred
Securities; PROVIDED that the maximum aggregate liquidation amount of Preferred
Securities of the Trust shall not exceed ____________ dollars ($_________).] The
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Preferred Securities are hereby designated for identification purposes only as
"_____% Preferred Securities" (the "Preferred Securities"). The Preferred
Security Certificates evidencing the Preferred Securities shall be substantially
in the form of Exhibit A to this Trust Agreement, with such changes and
additions thereto or deletions therefrom as may be required by ordinary usage,
custom or practice or to conform to the rules of any stock exchange on which the
Preferred Securities are listed or quoted subject to [Section 7.13(b).]
(ii) Common Securities. The Common Securities of the Trust shall have
an aggregate liquidation amount with respect to the assets of the Trust of
____________________________ dollars ($_______________) with respect to the
initial closing of the sale of Common Securities [and, if the Option set forth
in Section 7.13(a) is exercised, an additional aggregate liquidation amount with
respect to the assets of the Trust of __________ dollars ($__________)] with
respect to the second closing of the sale of Common Securities; PROVIDED that
the maximum aggregate liquidation amount of common securities issued by the
Trust shall not exceed __________ dollars ($___________). The Common Securities
are hereby designated for identification purposes only as "____% Common
Securities" (the "Common Securities" and, together with the Preferred
Securities, the "Securities"). The Common Security Certificates evidencing the
Common Securities shall be substantially in the form of Exhibit B to this Trust
Agreement, with such changes and additions thereto or deletions therefrom as may
be required by ordinary usage, custom or practice subject to [section 7.13(b).]
(b) Payment of Distributions on, and payment of the Redemption Price upon a
redemption of, the Preferred Securities and the Common Securities, as
applicable, shall be made Pro Rata based on the liquidation amount of such
Preferred Securities and Common Securities; provided, however, that if on any
date on which amounts payable on distribution or redemption, an Indenture Event
of Default shall have occurred and be continuing, no payment of any Distribution
on, or Redemption Price of, any of the Common Securities, and no other payment
on account of the redemption, liquidation or other acquisition of such Common
Securities, shall be made unless payment in full in cash of all accumulated and
unpaid Distributions on all of the outstanding Preferred Securities for all
Distribution periods terminating on or prior thereto, or, in the case of amounts
payable on redemption, the full amount of the Redemption Price for all of the
outstanding Preferred Securities then called for redemption, shall have been
made or provided for, and all funds 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, the Preferred Securities then due and payable. The Trust
shall issue no securities or other interests in the assets of the Trust other
than the Preferred Securities and the Common Securities.
(c) The Certificates shall be signed on behalf of the Trust by an
Administrative Trustee. Such signature shall be the manual or facsimile
signature of any present or any future Administrative Trustee. In case an
Administrative Trustee of the Trust who shall have signed any of the
Certificates shall cease to be such an Administrative Trustee before the
Certificates so signed shall be delivered by the Trust, such Certificates
nevertheless may be delivered as though the person who signed such Certificates
had not ceased to be such an Administrative Trustee; and any Certificate may be
signed on behalf of the Trust by such persons who, at the actual date of
execution of such Certificate, shall be the Administrative Trustees of the
Trust, although at the date of the execution and delivery of the Trust Agreement
any such person was not such an
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Administrative Trustee. 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 their execution thereof, and may have
such letters, numbers or other marks of identification or designation and such
legends or endorsements as the Administrative Trustees may deem appropriate, or
as may be required to comply with any law or with any rule or regulation of any
stock exchange on which Securities may be listed, or to conform to usage.
A Certificate representing Preferred Securities shall not be valid until
authenticated by the manual signature of an authorized officer of the Property
Trustee. Such signature shall be conclusive evidence that such Certificate has
been authenticated under this Trust Agreement. The Preferred Security
Certificates shall be dated their date of authentication.
Upon a written order of the Trust signed by one Administrative Trustee, the
Property Trustee shall authenticate the Certificates representing Preferred
Securities for original issue. The aggregate number of Preferred Securities
outstanding at any time shall not exceed the liquidation amount set forth in
Section 7.1(a)(i).
The Property Trustee may appoint an authenticating agent acceptable to the
Trust to authenticate Certificates. An authenticating agent may authenticate
Certificates whenever the Property Trustee may do so. Each reference in this
Trust Agreement 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 Sponsor or an Affiliate of the Sponsor.
(d) The consideration received by the Trust for the issuance of the
Securities shall constitute a contribution to the capital of the Trust and shall
not constitute a loan to the Trust.
(e) Except to the extent set forth in Section 9.1(b), upon issuance of the
Securities as provided in this Trust Agreement, the Securities so issued shall
be deemed to be validly issued, fully paid and non-assessable undivided
beneficial ownership interests in the assets of the Trust.
(f) Every Person, by virtue of having become a Holder or a Preferred
Security Beneficial Owner in accordance with the terms of this Trust Agreement,
shall be deemed to have expressly assented and agreed to the terms of, and shall
be bound by, this Trust Agreement and the terms of the Securities, the
Guarantee, the Indenture and the Debentures.
(g) The holders of the Securities shall have no preemptive or similar
rights.
SECTION 7.2 Distributions.
(a) Holders of Securities shall be entitled to receive cumulative cash
Distributions at the rate per annum of __% of the stated liquidation amount of
$__ per Security. The amount of Distributions payable for any period shall be
computed on the basis of a 360-day year of twelve 30-day months. The amount of
distributions payable for any period shorter than a full quarterly distribution
period shall be computed on the basis of a 30-day month and for periods of less
than a month, the actual number of days elapsed per 30-day month. Subject to
Section 7.1(b), Distributions shall be made on the Preferred Securities and the
Common Securities on a Pro Rata
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basis. Distributions on the Securities shall, from the date of original issue,
accrue and be cumulative and shall be payable [quarterly][semi-annually], in
arrears, on each __________ [, __________, _________] and _________, commencing
_________ __, ____, when, as and if available for payment, by the Property
Trustee, except as otherwise described below. Distributions are payable only to
the extent that payments are made in respect of the Debentures held by the
Property Trustee and to the extent that the Trust has funds available for the
payment of such Distributions in the Property Account.
(b) Distributions not paid on the scheduled payment date will accumulate
and compound [quarterly][semi-annually] at the rate of __% per annum
("Compounded Distributions"). "Distributions" shall mean ordinary cumulative
distributions together with any Compounded Distributions.
(c) If and to the extent that the Debenture Issuer makes a payment of
interest, premium and/or principal on the Debentures held by the Property
Trustee (the amount of any such payment being a "Payment Amount"), the Property
Trustee shall and is directed, to the extent funds are available for that
purpose, to make a Pro Rata distribution of the Payment Amount to Holders,
subject to Section 7.1(b).
(d) Distributions on the Securities shall be payable to the Holders thereof
as they appear on the register of the Trust as of the close of business on the
relevant record dates. While the Preferred Securities are represented by one or
more Global Securities, the relevant record dates shall be the close of business
on the Business Day next preceding such Distribution payment date, unless a
different regular record date is established or provided for the corresponding
interest payment date on the Debentures. The relevant record dates for the
Common Securities shall be the same as for the Preferred Securities. If the
Preferred Securities shall not continue to remain represented by one or more
Global Securities, the relevant record dates for the Preferred Securities shall
be selected by the Administrative Trustees and shall be at least 16 days prior
to the relevant payment dates. At all times, the Distribution payment dates
shall correspond to the interest payment dates on the Debentures. Distributions
payable on any Securities that are not punctually paid on any Distribution
payment date, as a result of the Debenture Issuer having failed to make a
payment under the Debentures, shall cease to be payable to the Person in whose
name such Securities are registered on the relevant record date, and such
defaulted Distribution will instead be payable to the Person in whose name such
Securities are registered on the special record date or other specified date
determined with respect to the related interest payment date pursuant to the
Indenture. If any date on which Distributions are payable on the Securities is
not a Business Day, then 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 of any such delay), except that, if such
Business Day is in the next succeeding calendar year, such payment shall be made
on the next succeeding day which is a Business Day, with the same force and
effect as if made on such payment date.
(e) In the event that there is any money or other property held by or for
the Trust that is not accounted for hereunder, such property shall be
distributed Pro Rata among the Holders of the Securities.
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SECTION 7.3 Redemption of Securities.
(a) Upon the repayment or redemption, in whole or in part, of the
Debentures held by the Trust, whether at the stated maturity of the Debentures
or upon earlier redemption as provided in the Indenture, the proceeds from such
repayment or redemption shall be simultaneously applied Pro Rata (subject to
Section 7.1(b)) to redeem Securities having an aggregate liquidation amount
equal to the aggregate principal amount of the Debentures so repaid or redeemed
at the Redemption Price. Holders shall be given not less than 20 nor more than
60 days notice of such redemption in accordance with Section 7.4.
(b) On the date fixed for any distribution of Debentures, upon dissolution
of the Trust, (i) the Securities will no longer be deemed to be outstanding and
(ii) certificates representing Securities will be deemed to represent the
Debentures having an aggregate principal amount equal to the stated liquidation
amount of, and bearing accrued and unpaid interest equal to accrued and unpaid
distributions on, such Securities until such certificates are presented to the
Sponsor or its agent for transfer or reissuance.
(c) Certificates called for redemption in whole must be surrendered to the
Paying Agent in order to receive payment of the Redemption Price.
SECTION 7.4 Redemption Procedures.
(a) Notice of any redemption of, or notice of distribution of Debentures in
exchange for, the Securities (a "Redemption/Distribution Notice"), which notice
shall be irrevocable, will be given by the Trust by mail to each Holder of
Securities to be redeemed or exchanged not fewer than 30 nor more than 60 days
before the date fixed for redemption or exchange thereof which, in the case of a
redemption, will be the date fixed for redemption of or the date of final
maturity of the Debentures. For purposes of the calculation of the date of
redemption or exchange and the dates on which notices are given pursuant to this
Section 7.4(a), a Redemption/Distribution Notice shall be deemed to be given on
the day such notice is first mailed by first-class mail, postage prepaid, to
Holders of Securities. Each Redemption/Distribution Notice shall be addressed to
the Holders of Securities at the address of each such Holder appearing in the
register of the Trust. No defect in the Redemption/Distribution Notice or in the
mailing of either thereof with respect to any Holder shall affect the validity
of the redemption or exchange proceedings with respect to any other Holder.
(b) If fewer than all the outstanding Securities are to be so redeemed, the
Common Securities and the Preferred Securities will be redeemed Pro Rata
(subject to Section 7.1(b)) and the Preferred Securities to be redeemed will be
redeemed as described in Section 7.4(c) below. The Trust may not redeem the
Securities in part unless all accumulated and unpaid Distributions to the date
of redemption have been paid in full on all Securities then outstanding. For all
purposes of this Trust Agreement, unless the context otherwise requires, all
provisions relating to the redemption of Preferred Securities shall relate, in
the case of any Preferred Security redeemed or to be redeemed only in part, to
the portion of the aggregate liquidation amount of Preferred Securities which
has been or is to be redeemed.
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(c) Subject to the Trust's fulfillment of the notice requirements set forth
in Section 7.4(a) above, if Securities are to be redeemed, then (i) with respect
to Preferred Securities represented by one or more Global Securities, by 12:00
noon, New York City time, on the redemption date (provided that the Debenture
Issuer has paid the Property Trustee a sufficient amount of immediately
available funds in connection with the related redemption or maturity of the
Debentures), the Property Trustee will deposit irrevocably with the Depositary
or its nominee (or successor Clearing Agency or its nominee) funds sufficient to
pay the applicable Redemption Price with respect to the Preferred Securities and
will give the Depositary irrevocable instructions and authority to pay the
Redemption Price to the Holders of the Preferred Securities and (ii) with
respect to Securities not represented by one or more Global Securities (provided
that the Debenture Issuer has paid the Property Trustee a sufficient amount of
immediately available funds in connection with the related redemption or
maturity of the Debentures), the Paying Agent will pay the relevant Redemption
Price to the Holders of such Securities by check mailed to the address of the
relevant Holder appearing on the register of the Trust on the redemption date.
If any date fixed for redemption of Securities 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) except that, if such Business Day is in the next
succeeding calendar year, such payment shall be made on the next succeeding day
which is a Business Day. If payment of the Redemption Price in respect of any
Securities is improperly withheld or refused and not paid either by the Property
Trustee or by the Sponsor as guarantor pursuant to the Guarantee, Distributions
on such Securities will continue to accrue at the then applicable rate from the
original redemption date to the actual date of payment, in which case the actual
payment date will be considered the date fixed for redemption for purposes of
calculating the Redemption Price. For these purposes, the applicable Redemption
Price shall not include Distributions which are being paid to Holders who were
Holders on a relevant record date. If a Redemption/Distribution Notice shall
have been given and funds deposited or paid as required, then immediately prior
to the close of business on the date of such deposit or payment, Distributions
will cease to accrue on the Securities called for redemption and all rights of
Holders of such Securities so called for redemption will cease, except the right
of the Holders to receive the Redemption Price, but without interest on such
Redemption Price, and from and after the date fixed for redemption, such
Securities will cease to be outstanding.
Neither the Administrative Trustees nor the Trust shall be required to
register or cause to be registered the transfer of any Securities that have been
called for redemption, except in the case of any Securities being redeemed in
part, any portion thereof not to be redeemed.
(d) Subject to the foregoing and applicable law (including, without
limitation, United States federal securities laws), the Debenture Issuer or its
subsidiaries may at any time and from time to time purchase outstanding
Preferred Securities by tender, in the open market or by private agreement.
SECTION 7.5 Voting Rights of Preferred Securities.
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(a) Except as provided under Section 11.1 and this Article 7 and as
otherwise required by the Business Trust Act, the Trust Indenture Act and other
applicable law, the Holders of the Preferred Securities shall have no voting
rights.
(b) Subject to the requirement of the Property Trustee obtaining a tax
opinion in certain circumstances set forth in Section 7.5(d) below, the Holders
of a Majority in Liquidation Amount of the Preferred Securities voting
separately as a class have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Property Trustee, or
to direct the exercise of any trust or power conferred upon the Property Trustee
under the Trust Agreement, including the right to direct the Property Trustee,
as Holder of the Debentures, to (i) exercise the remedies available to it under
the Indenture as a Holder of the Debentures; (ii) consent to any amendment or
modification of the Indenture or the Debentures where such consent shall be
required or (iii) waive any past default and its consequences that is waivable
under Section 6.6 of the Indenture; provided, however, that if an Indenture
Event of Default has occurred and is continuing, then the Holders of 25% of the
aggregate liquidation amount of the Preferred Securities may direct the Property
Trustee to declare the principal of and interest on the Debentures due and
payable; provided, further, that where a consent or action under the Indenture
would require the consent or act of the Holders of more than a majority of the
aggregate principal amount of Debentures affected thereby, only the Holders of
the percentage of the aggregate stated liquidation amount of the Preferred
Securities which is at least equal to the percentage required under the
Indenture may direct the Property Trustee to give such consent to take such
action provided, further, that (subject to the provisions of Section 3.9) the
Property Trustee shall have the right to decline to follow any such direction if
the Property Trustee shall determine that the action so directed would be
unjustly prejudicial to the Holders of Preferred Securities not taking part in
such direction or if the Property Trustee, being advised by counsel, determines
that the action or proceeding so directed may not lawfully be taken or if the
Property Trustee, in good faith, by its board of directors or trustees,
executive committee, or a trust committee of directors or trustees, and/or
Responsible Officers, shall determine that the action or proceeding so directed
would involve the Property Trustee in personal liability.
(c) If the Property Trustee fails to enforce its rights under the
Debentures after a Holder of Preferred Securities has made a written request,
such Holder of Preferred Securities may, to the extent permitted by applicable
law, institute a legal proceeding directly against the Debenture Issuer to
enforce the Property Trustee's rights under the Indenture without first
instituting any legal proceeding against the Property Trustee or any other
Person. In addition, if a Trust Enforcement Event has occurred and is continuing
and such event is attributable to the failure of the Debenture Issuer to make
any interest, principal or other required payments when due under the Indenture,
then a Holder of Preferred Securities may directly institute a Direct Action
against the Debenture Issuer on or after the respective due date specified in
the Debentures.
(d) Subject to section 2.7 the Property Trustee shall notify all Holders of
the Preferred Securities of any notice of any Indenture Event of Default
received from the Debenture Issuer with respect to the Debentures. Such notice
shall state that such Indenture Event of Default also constitutes a Trust
Enforcement Event. Except with respect to directing the time, method, and place
of conducting a proceeding for a remedy, the Property Trustee shall be under no
obligation to take any of the actions described in clause 7.5(b)(i) and (ii)
above unless the Property Trustee
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has obtained an opinion of independent tax counsel to the effect that the Trust
will not fail to be classified as a grantor trust for United States federal
income tax purposes as a result of such action, and each Holder will be treated
as owning an undivided beneficial ownership interest in the Debentures.
(e) In the event the consent of the Property Trustee, as the Holder of the
Debentures, is required under the Indenture with respect to any amendment or
modification of the Indenture, the Property Trustee shall request the direction
of the Holders of the Securities with respect to such amendment or modification
and shall vote with respect to such amendment or modification as directed by not
less than a majority in liquidation amount of the Securities voting together as
a single class; provided, however, that where a consent under the Indenture
would require the consent of the Holders of more than a majority of the
aggregate principal amount of the Debentures, the Property Trustee may only give
such consent at the direction of the Holders of at least the same proportion in
aggregate stated liquidation amount of the Securities. The Property Trustee
shall not take any such action in accordance with the directions of the Holders
of the Securities unless the Property Trustee has obtained an opinion of
independent tax counsel to the effect that the Trust will not be classified as
other than a grantor trust for United States federal income tax purposes as a
result of such action, and each Holder will be treated as owning an undivided
beneficial ownership interest in the Debentures.
(f) A waiver of an Indenture Event of Default with respect to the
Debentures will constitute a waiver of the corresponding Trust Enforcement
Event.
(g) Any required approval or direction of Holders of Preferred Securities
may be given at a separate meeting of Holders of Preferred Securities convened
for such purpose, at a meeting of all of the Holders of Securities or pursuant
to written consent. The Administrative Trustees will cause a notice of any
meeting at which Holders of Preferred Securities are entitled to vote to be
mailed to each Holder of record of Preferred Securities. Each such notice will
include a statement setting forth (i) the date of such meeting, (ii) a
description of any resolution proposed for adoption at such meeting on which
such Holders are entitled to vote and (iii) instructions for the delivery of
proxies.
(h) No vote or consent of the Holders of Preferred Securities shall be
required for the Trust to redeem and cancel Preferred Securities or distribute
Debentures in accordance with this Trust Agreement and the terms of the
Securities.
(i) Notwithstanding that Holders of Preferred Securities are entitled to
vote or consent under any of the circumstances described above, any of the
Securities that are owned at such time by the Debenture Issuer, any
Administrative Trustee or any entity directly or indirectly controlled by, or
under direct or indirect common control with, the Debenture Issuer or any
Administrative Trustee, shall not be entitled to vote or consent and shall, for
purposes of such vote or consent, be treated as if such Securities were not
outstanding; PROVIDED, HOWEVER, that persons otherwise eligible to vote to whom
the Debenture Issuer or any of its subsidiaries have pledged Preferred
Securities may vote or consent with respect to such pledged Preferred Securities
under any of the circumstances described herein.
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(j) Subject to Sections 6.6(a) and 7.5(k), Holders of the Preferred
Securities shall have no rights to appoint or remove the Trustees, who may be
appointed, removed or replaced solely by the Common Securities Holder.
(k) Subject to the rights of the Holders of a Majority in Liquidated Amount
of the Common Securities to appoint or remove Administrative Trustees as
provided in Section 6.6(a)(iii), an Indenture Event of Default has occurred and
is continuing, the Trustees may be removed at such time only by a Majority in
Liquidation Amount of the Preferred Securities.
SECTION 7.6 Voting Rights of Common Securities.
(a) Except as provided under Section 6.1(b), this Section 7.6 or Section
11.1 or as otherwise required by the Business Trust Act, the Trust Indenture Act
or other applicable law or provided by the Trust Agreement, the Holders of the
Common Securities will have no voting rights.
(b) Subject to Sections 6.6(a) and 7.5(k), the Holders of the Common
Securities shall be entitled, in accordance with Article 6 of this Trust
Agreement, to vote to appoint, remove or replace any Trustee or to increase or
decrease the number of Trustees.
(c) Subject to Section 2.6 and only after all Trust Enforcement Events with
respect to the Preferred Securities have been cured, waived, or otherwise
eliminated and subject to the requirement of the Property Trustee obtaining a
tax opinion in certain circumstances set forth in this paragraph (c), the
Holders of a Majority in Liquidation Amount of the Common Securities have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Property Trustee, or direct the exercise of any trust or
power conferred upon the Property Trustee under this Trust Agreement, including
the right to direct the Property Trustee, as Holder of the Debentures, to (i)
exercise the remedies available to it under the Indenture as a Holder of the
Debentures, (ii) consent to any amendment or modification of the Indenture or
the Debentures where such consent shall be required or (iii) waive any past
default and its consequences that is waivable under Section 6.6 of the
Indenture; provided, however, that where a consent or action under the Indenture
would require the consent or act of the Holders of more than a majority of the
aggregate principal amount of Debentures affected thereby, only the Holders of
the percentage of the aggregate stated liquidation amount of the Common
Securities which is at least equal to the percentage required under the
Indenture may direct the Property Trustee to have such consent or take such
action, provided, further, that (subject to the provisions of Section 3.9) the
Property Trustee shall have the right to decline to follow any such direction if
the Property Trustee shall determine that the action so directed would be
unjustly prejudicial to the Holders of Common Securities not taking part in such
direction or if the Property Trustee, being advised by counsel, determines that
the action or proceeding so directed may not lawfully be taken or if the
Property Trustee, in good faith, by its board of directors or trustees,
executive committee, or a trust committee of directors or trustees, and/or
Responsible officers, shall determine that the action or proceeding so directed
would involve the Property Trustee in personal liability.. Except with respect
to directing the time, method, and place of conducting a proceeding for a
remedy, the Property Trustee shall be under no obligation to take any of the
actions described in clause 7.6(c)(i) and (ii) above unless the Property Trustee
has obtained an
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opinion of independent tax counsel to the effect that, as a result of such
action, for United States federal income tax purposes the Trust will not fail to
be classified as a grantor trust and [each Holder will be treated as owning an
undivided beneficial ownership interest in the Debentures.]
(d) If the Property Trustee fails to enforce its rights under the
Debentures after a Holder of Common Securities has made a written request, such
Holder of Common Securities may, to the extent permitted by applicable law,
directly institute a legal proceeding directly against the Debenture Issuer to
enforce the Property Trustee's rights under the Debentures without first
instituting any legal proceeding against the Property Trustee or any other
Person.
(e) A waiver of an Indenture Event of Default with respect to the
Debentures will constitute a waiver of the corresponding Trust Enforcement
Event.
(f) Any required approval or direction of Holders of Common Securities may
be given at a separate meeting of Holders of Common Securities convened for such
purpose, at a meeting of all of the Holders of Securities or pursuant to written
consent. The Administrative Trustees will cause a notice of any meeting at which
Holders of Common Securities are entitled to vote to be mailed to each Holder of
record of Common Securities. Each such notice will include a statement setting
forth (i) the date of such meeting, (ii) a description of any resolution
proposed for adoption at such meeting on which such Holders are entitled to vote
and (iii) instructions for the delivery of proxies.
(g) No vote or consent of the Holders of the Common Securities will be
required for the Trust to redeem and cancel Common Securities or to distribute
Debentures in accordance with the Trust Agreement and the terms of the
Securities.
SECTION 7.7 Paying Agent.
[(Compare to 3.8(h)) The Trust shall maintain in the Borough of Manhattan,
City of New York, State of New York, an office or agency where the Preferred
Securities may be presented for payment ("Paying Agent"). The Trust may appoint
the paying agent and may appoint one or more additional paying agents in such
other locations as it shall determine. The term "Paying Agent" includes any
additional paying agent. The Trust may change any Paying Agent without prior
notice to the Holders. The Trust shall notify the Property Trustee of the name
and address of any Paying Agent not a party to this Trust Agreement. If the
Trust fails to appoint or maintain another entity as Paying Agent, the Property
Trustee shall act as such. The Trust or any of its Affiliates may act as Paying
Agent. The Property Trustee shall initially act as Paying Agent for the
Securities. In the event 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 Debenture Issuer) to act as Paying
Agent. The Paying Agent shall be permitted to resign as Paying Agent upon 30
days' written notice to the Property Trustee and the Debenture Issuer.]
[SECTION 7.8 Listing
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[The Sponsor shall use its best efforts to cause the Preferred Securities
to be listed for quotation on the New York Stock Exchange.]
SECTION 7.9 Transfer of Securities.
(a) Securities may only be transferred, in whole or in part, in accordance
with the terms and conditions set forth in this Trust Agreement and in the terms
of the Securities. To the fullest extent permitted by law, any transfer or
purported transfer of any Security not made in accordance with this Trust
Agreement shall be null and void.
(b) (i) Subject to this Article 7, Preferred Securities shall be freely
transferable.
(ii) The Holder of the Common Securities may not transfer the Common
Securities except (A) in compliance with a consolidation, merger, sale,
conveyance or lease of the Sponsor in compliance with Article XI of the
Indenture or (B) to the Sponsor or an Affiliate thereof in compliance with
applicable law, including the Securities Act and applicable state securities and
blue sky laws. To the fullest extent permitted by law, any attempted transfer of
the Common Securities other than as set forth in the immediately preceding
sentence shall be null and void.
(c) The Trust shall cause to be kept at the Corporate Trust Office of the
Property Trustee a register (the register maintained in such office being herein
sometimes referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Trust shall provide for the
registration of Preferred Securities and of transfers of Preferred Securities.
The Property Trustee is hereby appointed "Security Registrar" for the purpose of
registering Preferred Securities and transfers of Preferred Securities as herein
provided.
(d) Upon surrender for registration of transfer of any Security at an
office or agency of the Trust designated for such purpose, the Trust shall
execute, and in the case of Preferred Securities the Property Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Securities of any authorized denominations and of a
like aggregate principal amount.
(e) At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denominations and of a like aggregate principal
amount, upon surrender of the Securities to be exchanged at such office or
agency. Whenever any Securities are so surrendered for exchange, the Trust shall
execute, and in the case of Preferred Securities the Property Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
(f) Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Trust or the Property Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Trust and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
(g) No service charge shall be made for any registration of transfer or
exchange of Securities, but the Trust may require payment of a sum sufficient to
cover any tax or other
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governmental charge that may be imposed in connection with any registration of
transfer or exchange of Securities.
(h) If the Securities are to be redeemed in part, the Trust shall not be
required (A) to issue, register the transfer of or exchange any Securities
during a period beginning at the opening of business 15 days before the day of
the mailing of a notice of redemption of any such Securities selected for
redemption under Section 7.4 and ending at the close of business on the day of
such mailing, or (B) to register the transfer or exchange of any Security so
selected for redemption in whole or in part, except the unredeemed portion of
any Security being redeemed in part.
SECTION 7.10 Mutilated, Destroyed, Lost or Stolen Certificates.
If:
(a) any mutilated Certificates should be surrendered to the Administrative
Trustees or the Property Trustee, or if the Administrative Trustees and the
Property Trustee shall receive evidence to their satisfaction of the
destruction, loss or theft of any Certificate; and
(b) there shall be delivered to the Administrative Trustees and the
Property Trustee such security or indemnity as may be required by them to keep
each of the Trustees, the Sponsor and the Trust harmless, then, in the absence
of notice that such Certificate shall have been acquired by a bona fide
purchaser, any Administrative Trustee on behalf of the Trust shall execute and
deliver and, with respect to Preferred Securities Certificates, the Property
Trustee shall authenticate, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like denomination.
In connection with the issuance of any new Certificate under this Section 7.10,
the Administrative Trustees 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 Certificate issued pursuant to this Section shall
constitute conclusive evidence of an ownership interest in the relevant
Securities, as if originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time. The provisions of this Section
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
Certificates.
SECTION 7.11 Deemed Security Holders.
The Trustees may treat the Person in whose name any Certificate shall be
registered on the register of the Trust as the sole holder of such Certificate
and of the Securities represented by such Certificate for purposes of receiving
Distributions subject to Section 7.2(d) and for all other purposes whatsoever
and, accordingly, shall not be bound to recognize any equitable or other claim
to or interest in such Certificate or in the Securities represented by such
Certificate on the part of any Person, whether or not the Trust shall have
actual or other notice thereof.
SECTION 7.12 Global Securities.
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The Preferred Securities may be issued in the form of one or more Global
Securities. If the Preferred Securities are to be issued in the form of one or
more Global Securities, then an Administrative Trustee on behalf of the Trust
shall execute and the Property Trustee shall authenticate and deliver one or
more Global Securities that (i) shall represent and shall be denominated in an
amount equal to the aggregate liquidation amount of all of the Preferred
Securities to be issued in the form of Global Securities and not yet cancelled,
(ii) shall be registered in the name of the Depositary for such Global Security
or the nominee of such Depositary, and (iii) shall be delivered by the Property
Trustee to such Depositary or pursuant to such Depositary's instructions. Global
Securities shall bear a legend substantially to the following effect:
"This Preferred Security is a Global Security within the meaning of the
Trust Agreement hereinafter referred to and is registered in the name of The
Depository Trust Company, a New York corporation (the "Depositary"), or a
nominee of the Depositary. This Preferred Security is exchangeable for Preferred
Securities registered in the name of a person other than the Depositary or its
nominee only in the limited circumstances described in the Trust Agreement and
no transfer of this Preferred Security (other than a transfer of this Preferred
Security 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 limited circumstances.
Unless this Preferred Security Certificate is presented by an authorized
representative of the Depositary to Dominion Resources Capital Trust __ or its
agent for registration of transfer, exchange or payment, and any Preferred
Security Certificate issued is registered in the name of Cede & Co. or such
other name as requested by an authorized representative of the Depositary (and
any payment hereon is made to Cede & Co. or to such other entity as is requested
by an authorized representative of the Depositary), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch
as the registered owner hereof, Cede & Co., has an interest herein."
Preferred Securities not represented by a Global Security issued in
exchange for all or a part of a Global Security pursuant to this Section 7.12
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 Property Trustee. Upon execution and
authentication, the Property Trustee shall deliver such Preferred Securities not
represented by a Global Security to the Persons in whose names such definitive
Preferred Securities are so registered.
At such time as all interests in Global Securities have been redeemed,
repurchased or cancelled, such Global Securities shall be, upon receipt thereof,
cancelled by the Property Trustee in accordance with standing procedures of
the Depositary. At any time prior to such cancellation, if any interest in
Global Securities is exchanged for Preferred Securities not represented by a
Global Security, redeemed, cancelled or transferred to a transferee who receives
Preferred Securities not represented by a Global Security therefor or any
Preferred Security not represented by a Global Security is exchanged or
transferred for part of Global Securities, the principal amount of such Global
Securities shall, in accordance with the standing procedures of
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the Depositary, be reduced or increased, as the case may be, and an endorsement
shall be made on such Global Securities by the Property Trustee to reflect such
reduction or increase.
The Trust and the Property Trustee may for all purposes, including the
making of payments due on the Preferred Securities, deal with the Depositary as
the authorized representative of the Holders for the purposes of exercising the
rights of Holders hereunder. The rights of the owner of any beneficial interest
in a Global Security shall be limited to those established by law and agreements
between such owners and depository participants provided, that no such agreement
shall give any rights to any Person against the Trust or the Property Trustee
without the written consent of the parties so affected. Multiple requests and
directions from and votes of the Depositary as holder of Preferred Securities in
global form with respect to any particular matter shall not be deemed
inconsistent to the extent they do not represent an amount of Preferred
Securities in excess of those held in the name of the Depositary or its nominee.
If at any time the Depositary for any Preferred Securities represented by
one or more Global Securities notifies the Trust that it is unwilling or unable
to continue as Depositary for such Preferred Securities or if at any time the
Depositary for such Preferred Securities shall no longer be eligible, the Trust
shall appoint a successor Depositary with respect to such Preferred Securities.
If a successor Depositary for such Preferred Securities is not appointed by the
Trust within 90 days after the Trust receives such notice or becomes aware of
such ineligibility, the Trust's election that such Preferred Securities be
represented by one or more Global Securities shall no longer be effective and
the Trust shall execute, and the Property Trustee will authenticate and deliver,
Preferred Securities in definitive registered form, in any authorized
denominations, in an aggregate liquidation amount equal to the principal amount
of the Global Security or Preferred Securities representing such Preferred
Securities in exchange for such Global Security or Preferred Securities.
The Trust may at any time and in its sole discretion determine that the
Preferred Securities issued in the form of one or more Global Securities shall
no longer be represented by a Global Security or Preferred Securities. In such
event the Trust shall execute, and the Property Trustee, shall authenticate and
deliver, Preferred Securities in definitive registered form, in any authorized
denominations, in an aggregate liquidation amount equal to the principal amount
of the Global Security or Preferred Securities representing such Preferred
Securities, in exchange for such Global Security or Preferred Securities.
Notwithstanding any other provisions of this Trust Agreement (other than
the provisions set forth in Section 7.9), Global Securities may not be
transferred as a whole except by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor Depositary or
a nominee of such successor Depositary.
Subject to the third preceding paragraph, interests of beneficial owners in
a Global Security may be transferred or exchanged for Preferred Securities not
represented by a Global Security and Preferred Securities not represented by a
Global Security may be transferred or
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exchange for Global Securities in accordance with rules of the Depositary and
the provisions of Section 7.9.
[SECTION 7.13 Over-Allotment Option.
(a) The Administrative Trustees, on behalf of the Trust, and the Sponsor
may grant to the underwriters or initial purchasers who are underwriting or
purchasing, as the case may be, any series of Preferred Securities, an option
(the "Option") to purchase an additional liquidation amount of such series of
Preferred Securities on the terms and conditions specified in the underwriting
agreement or purchase agreement, as the case may be, relating to such Preferred
Securities; PROVIDED, HOWEVER, the Option may only be granted if the following
conditions are satisfied:
(i) the Option, if exercised, may not result in the issue and sale of an
aggregate liquidation amount of Preferred Securities greater than that
registered by the Sponsor and the Trust on the applicable registration statement
or registration statements (including by a registration statement filed under
Rule 462(b) under the Securities Act, if any), as the case may be, with the
Commission under the Securities Act;
(ii) the Option must result, if exercised, in the issuance and sale of
Preferred Securities to such underwriters or initial purchasers, as he case may
be, and the issuance and sale of Common Securities to the Sponsor on a Pro Rata
basis and not in contravention of any other provision of this Agreement or the
Business Trust Act, consistent with Section 5.1; and
(iii) the Preferred Securities and the Common Securities issued and sold
subject to the exercise of the Option, if any, must be of the same series and
must bear the same CUSIP numbers as the series of Preferred Securities and the
Common Securities,
respectively, which were initially issued and sold by the Trust and the
Sponsor, respectively.
(b) With respect to any issuance of Preferred Securities and Common
Securities following the exercise of the Option,
(i) the designation the "__% Preferred Securities" and, for all purposes
under this Trust Agreement, the defined terms the "Preferred Securities" shall
mean both the Preferred Securities issued initially hereunder and any Preferred
Securities issued pursuant to the exercise of the Option; and
(ii) the designation the "__% Common Securities" and, for all purposes
under this Trust Agreement, the defined term the "Common Securities" shall mean
both the Common Securities issued initially hereunder and any Common Securities
issued pursuant to the requirement of Section 7.13(a)(ii) regarding the
additional issuance of Common Securities on a Pro Rata basis if the Option is
exercised.
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(c) If the Option set forth in Section 7.13(a) is exercised on a date other
than the initial Closing Date, then the parties to the Trust Agreement shall
cause there to occur a second closing for the consummation of the sale of the
Preferred Securities and Common Securities under substantially the same
conditions that applied to the initial closing of the sale of such securities,
including the following:
(i) the execution and delivery of a second Preferred Security Certificate,
or such additional Preferred Security Certificates, as appropriate, which is, or
are, as the case may be, substantially identical in all respects to the
Preferred Security Certificate issued initially; and
(ii) the execution and delivery of a second Common Security Certificate, or
such additional Common Security Certificate, as appropriate, which is, or are,
as the case may be, substantially identical in all relevant respects to the
Common Security Certificate issued initially.]
Section 7.14 Cancellation.
All Certificates surrendered for payment, redemption, registration of
transfer or exchange shall, if surrendered to any Person other than the Property
Trustee, be delivered to the Property Trustee and shall be promptly cancelled by
it. No Certificates shall be executed or authenticated in lieu of or in exchange
for any Certificates cancelled as provided in this Section, except as permitted
by this Trust Agreement. All cancelled Certificates held by the Property Trustee
shall be disposed of by it in accordance with its customary procedures.
ARTICLE 8
DISSOLUTION AND TERMINATION OF TRUST
SECTION 8.1 Dissolution and Termination of Trust.
(a) The Trust shall dissolve upon the earliest of:
(i) the Bankruptcy Event of the Holder of the Common Securities or
the Sponsor;
(ii) the filing of a certificate of dissolution or its equivalent with
respect to the Sponsor; the dissolution of the Trust after obtaining the consent
of the Holders of at least a Majority in Liquidation Amount of the Securities to
dissolve the Trust; or the revocation of the Sponsor's charter and the
expiration of 90 days after the date of revocation without a reinstatement
thereof;
(iii) the entry of a decree of judicial dissolution of the Sponsor or
the Trust;
(iv) the time when all of the Securities shall have been called for
redemption and the amounts then due shall have been paid to the Holders in
accordance with the terms of the Securities;
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(v) at the Sponsor's election by notice and direction to the Property
Trustee to distribute the Debentures to the Holders of the Securities in
exchange for all of the Securities; PROVIDED that the Sponsor will be required
to obtain an opinion of an independent counsel that the distribution of the
Debentures will not be taxable to the Holders of the Preferred Securities for
United States federal income tax purposes; or
(vi) the time when all of the Administrative Trustees and the Sponsor
shall have consented to dissolution of the Trust provided such action is taken
before the issuance of any Securities.
(b) As soon as is practicable after the occurrence of an event referred to
in Section 8.1(a) and upon completion of the winding up and liquidation of the
Trust, the Trustees shall terminate the Trust by filing a certificate of
cancellation with the Secretary of State of the State of Delaware.
(c) The provisions of Section 4.2 and Article 9 shall survive the
termination of the Trust.
SECTION 8.2 Liquidation Distribution Upon Dissolution of the Trust.
(a) In the event of any voluntary or involuntary liquidation, dissolution,
or winding-up of the Trust (each a "Liquidation"), the Holders of the Securities
on the date of the Liquidation will be entitled to receive, out of the assets of
the Trust available for distribution to Holders of Securities after satisfaction
of the Trusts' liabilities to creditors, if any, distributions in cash or other
immediately available funds in an amount equal to the aggregate of the stated
liquidation amount of $__ per Security plus accumulated and unpaid Distributions
thereon to the date of payment (such amount being the "Liquidation
Distribution"), unless, in connection with such Liquidation, Debentures in an
aggregate stated principal amount equal to the aggregate stated liquidation
amount of, with an interest rate identical to the distribution rate of, and
accrued and unpaid interest equal to accumulated and unpaid Distributions on,
such Securities shall be distributed on a Pro Rata basis to the Holders of the
Securities in exchange for such Securities.
(b) If, upon any such Liquidation, 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 the amounts payable directly by the
Trust on the Securities shall be paid on a Pro Rata basis. The Holders of the
Common Securities will be entitled to receive distributions upon any such
Liquidation Pro Rata with the Holders of the Preferred Securities except that if
an Indenture Event of Default has occurred and is continuing, the Preferred
Securities shall have a preference over the Common Securities with regard to
such distributions.
ARTICLE 9
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, DELAWARE TRUSTEES OR OTHERS
SECTION 9.1 Liability.
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(a) Except as expressly set forth in this Trust Agreement, the Guarantee
and the terms of the Securities, the Sponsor:
(i) shall not be personally liable for the return of any portion of
the capital contributions (or any return thereon) of the Holders of the
Securities which shall be made solely from assets of the Trust; and
(ii) shall not be required to pay to the Trust or to any Holder of
Securities any deficit upon dissolution of the Trust or otherwise.
(b) Pursuant to Section 3803(a) of the Business Trust Act, the Holder of
the Common Securities 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; provided, however,
the Holders of the Common Securities shall be liable for all of the debts and
obligations of the Trust (other than with respect to the Securities) to the
extent not satisfied out of the Trust's assets.
(c) Pursuant to Section 3803(a) of the Business Trust Act, the Holders of
the Preferred Securities 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.
SECTION 9.2 Exculpation.
(a) No Indemnified Person shall be liable, responsible or accountable in
damages or otherwise to the Trust or any Covered Person for any loss, damage or
claim incurred by reason of any act or omission performed or omitted by such
Indemnified Person in good faith on behalf of the Trust and in a manner such
Indemnified Person reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this Trust Agreement or by law, except
that, subject to section 3.11, an Indemnified Person shall be liable for any
such loss, damage or claim incurred by reason of such Indemnified Person's
negligence or willful misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in good faith
upon the records of the Trust and upon such information, opinions, reports or
statements presented to the Trust by any Person as to matters the Indemnified
Person reasonably believes are within such other Person's professional or expert
competence and who has if selected by such Indemnified Person, been selected by
such Indemnified Person with reasonable care on behalf of the Trust, including
information, opinions, reports or statements as to the value and amount of the
assets, liabilities, profits, losses or any other facts pertinent to the
existence and amount of assets from which Distributions to Holders of Securities
might properly be paid.
SECTION 9.3 Fiduciary Duty.
(a) To the extent that, at law or in equity, an Indemnified Person has
duties (including fiduciary duties) and liabilities relating thereto to the
Trust or to any other Covered Person, an
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Indemnified Person acting under this Trust Agreement shall not be liable to the
Trust or to another Covered Person for its good faith reliance on the provisions
of this Trust Agreement. The provisions of this Trust Agreement, to the extent
that they restrict the duties and liabilities of an Indemnified Person otherwise
existing at law or in equity (other than the duties imposed on the Property
Trustee under the Trust Indenture Act), are agreed by the parties hereto to
replace such other duties and liabilities of such Indemnified Person.
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises between any
Covered Person and any Indemnified Person; or
(ii) whenever this Trust Agreement or any other agreement contemplated
herein or therein provides that an Indemnified Person shall act in a manner that
is, or provides terms that are, fair and reasonable to the Trust or any Holder
of Securities,
the Indemnified Person shall resolve such conflict of interest, take such action
or provide such terms, considering in each case the relative interest of each
party (including its own interest) to such conflict, agreement, transaction or
situation and the benefits and burdens relating to such interests, any customary
or accepted industry practices and any applicable generally accepted accounting
practices or principles. In the absence of bad faith by the Indemnified Person,
the resolution, action or term so made, taken or provided by the Indemnified
Person shall not constitute a breach of this Trust Agreement or any other
agreement contemplated herein or of any duty or obligation of the Indemnified
Person at law or in equity or otherwise.
(c) Whenever in this Trust Agreement an Indemnified Person is permitted or
required to make a decision:
(i) in its "discretion" or under a grant of similar authority, the
Indemnified Person shall be entitled to consider such interests and factors as
it desires, including its own interests, and shall have no duty or obligation to
give any consideration to any interest of or factors affecting the Trust or any
other Person; or
(ii) in its "good faith" or under another express standard, the
Indemnified Person shall act under such express standard and shall not be
subject to any other or different standard imposed by this Trust Agreement or by
applicable law.
SECTION 9.4 Indemnification.
(a)(i) The Debenture Issuer shall indemnify, to the full extent permitted
by law, any Debenture Issuer Indemnified Person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Trust) by reason of the fact
that he is or was a Debentures Issuer Indemnified Person against expenses
(including attorney fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a
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manner he reasonably believed to be in or not opposed to the best interests of
the Trust, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the Debentures Issuer Indemnified Person did not act in good
faith and in a manner which he reasonably believed to be in or not opposed to
the best interests of the Trust, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
(ii) The Debenture Issuer shall indemnify, to the full extent permitted by
law, any Debentures Issuer Indemnified Person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the Trust to procure a judgment in its favor by
reason of the fact that he is or was a Debentures Issuer Indemnified Person
against expenses (including attorneys' fees) actually and reasonably incurred by
him in connection with the defense or settlement of such action or suit if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Trust and except that no such
indemnification shall be made in respect of any claim, issue or matter as to
which such Debentures Issuer Indemnified Person shall have been adjudged to be
liable to the Trust unless and only to the extent that the Court of Chancery of
Delaware or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which such Court of Chancery or such other court
shall deem proper.
(iii) Any indemnification under paragraphs (i) and (ii) of this Section
9.4(a) (unless ordered by a court) shall be made by the Debenture Issuer only as
authorized in the specific case upon a determination that indemnification of the
Debentures Issuer Indemnified Person is proper in the circumstances because he
has met the applicable standard of conduct set forth in paragraphs (i) and (ii).
Such determination shall be made (1) by the Administrative Trustees by a
majority vote of a quorum consisting of such Administrative Trustees who were
not parties to such action, suit or proceeding, (2) if such a quorum is not
obtainable, or, even if obtainable, if a quorum of disinterested Administrative
Trustees so directs, by independent legal counsel in a written opinion, or (3)
by the Holders of the Common Securities of the Trust.
(iv) Expenses (including attorneys' fees) incurred by a Debentures Issuer
Indemnified Person in defending a civil, criminal, administrative or
investigative action, suit or proceeding referred to in paragraphs (i) and (ii)
of this Section 9.4(a) shall be paid by the Debenture Issuer in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such Junior Subordinated Debt- Securities Issuer
Indemnified Person to repay such amount if it shall ultimately be determined
that he is not entitled to be indemnified by the Debenture Issuer as authorized
in this Section 9.4(a). Notwithstanding the foregoing, no advance shall be made
by the Debenture Issuer if a determination is reasonably and promptly made (i)
by the Administrative Trustees by a majority vote of a quorum of disinterested
Administrative Trustees, (ii) if such a quorum is not obtainable, or, even if
obtainable, if a quorum of disinterested Administrative Trustees so directs, by
independent legal counsel in a written opinion or (iii) the Common Security
Holder of the Trust,
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that, based upon the facts known to the Administrative Trustees, counsel or the
Common Security Holder at the time such determination is made, such Debentures
Issuer Indemnified Person acted in bad faith or in a manner that such person did
not believe to be in or not opposed to the best interests of the Trust, or, with
respect to any criminal proceeding, that such Debentures Issuer Indemnified
Person believed or had reasonable cause to believe his conduct was unlawful. In
no event shall any advance be made in instances where the Administrative
Trustees, independent legal counsel or Common Security Holder reasonably
determine that such person deliberately breached his duty to the Trust or its
Common or Preferred Security Holders.
(v) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other paragraphs of this Section 9.4(a) shall not be
deemed exclusive of any other rights to which those seeking indemnification and
advancement of expenses may be entitled under any agreement, vote of
stockholders or disinterested directors of the Debenture Issuer or Preferred
Security Holders of the Trust or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office. All
rights to indemnification under this Section 9.4(a) shall be deemed to be
provided by a contract between the Debenture Issuer and each Debentures Issuer
Indemnified Person who serves in such capacity at any time while this Section
9.4(a) is in effect. Any repeal or modification of this Section 9.4(a) shall not
affect any rights or obligations then existing.
(vi) The Debenture Issuer or the Trust may purchase and maintain
insurance on behalf of any person who is or was a Debentures Issuer Indemnified
Person against any liability asserted against him and incurred by him in any
such capacity, or arising out of his status as such, whether or not the
Debenture Issuer would have the power to indemnify him against such liability
under the provisions of this Section 9.4(a).
(vii) For purposes of this Section 9.4(a), references to "the Trust"
shall include, in addition to the resulting or surviving entity, any constituent
entity (including any constituent of a constituent) absorbed in a consolidation
or merger, so that any person who is or was a director, trustee, officer or
employee of such constituent entity, or is or was serving at the request of such
constituent entity as a director, trustee, officer, employee or agent of another
entity, shall stand in the same position under the provisions of this Section
9.4(a) with respect to the resulting or surviving entity as he would have with
respect to such constituent entity if its separate existence had continued.
(viii) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Section 9.4(a) shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a
Debentures Issuer Indemnified Person and shall inure to the benefit of the
heirs, executors and administrators of such a person. The obligation to
indemnify as set forth in this Section 9.4(a) shall survive the resignation or
removal of the Delaware Trustee or the Property Trustee or the termination of
this Trust Agreement.
(b) The Debenture Issuer agrees to indemnify the (i) Property Trustee, (ii)
the Delaware Trustee, (iii) any Affiliate of the Property Trustee or the
Delaware Trustee, and (iv) any officers, directors, shareholders, members,
partners, employees, representatives, custodians, nominees or agents of the
Property Trustee or the Delaware Trustee (each of the Persons in (i) through
(iv)
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being referred to as a "Fiduciary Indemnified Person") for, and to hold
each Fiduciary Indemnified Person harmless against, any loss, liability or
expense incurred without gross negligence or willful misconduct 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 (including
reasonable legal fees and expenses) of defending itself against or investigating
any claim or liability in connection with the exercise or performance of any of
its powers or duties hereunder. The obligation to indemnify as set forth in this
Section 9.4(b) shall survive the resignation and removal of the Delaware Trustee
or the Property Trustee and the dissolution of the Trust and the termination of
this Trust Agreement. In addition, the Debenture Issuer has agreed in the
Indenture to pay the fees and expenses of the Delaware Trustee and the Property
Trustee.
SECTION 9.5 Outside Businesses.
Subject to the provisions of Section 6.3, any Covered Person, the Sponsor,
the Delaware Trustee and the Property Trustee may engage in or possess an
interest in other business ventures of any nature or description, independently
or with others, similar or dissimilar to the activities of the Trust, and the
Trust and the Holders of Securities shall have no rights by virtue of this Trust
Agreement in and to such independent ventures or the income or profits derived
therefrom, and the pursuit of any such venture, even if competitive with the
activities of the Trust, shall not be deemed wrongful or improper. No Covered
Person, the Sponsor, the Delaware Trustee or the Property Trustee shall be
obligated to present any particular investment or other opportunity to the Trust
even if such opportunity is of a character that, if presented to the Trust,
could be taken by the Trust, and any Covered Person, the Sponsor, the Delaware
Trustee and the Property Trustee shall have the right to take for its own
account (individually or as a partner or fiduciary) or to recommend to others
any such particular investment or other opportunity. Any Covered Person, the
Delaware Trustee and the Property Trustee may engage or be interested in any
financial or other transaction with the Sponsor or any Affiliate of the Sponsor,
or may act as depositary for, trustee or agent for, or act on any committee or
body of holders of, securities or other obligations of the Sponsor or its
Affiliates.
ARTICLE 10
ACCOUNTING
SECTION 10.1 Fiscal Year.
The fiscal year ("Fiscal Year") of the Trust shall be the calendar year, or
such other year as is required by the Code.
SECTION 10.2 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
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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.
(b) The Administrative Trustees shall cause to be prepared and delivered to
each of the Holders of Securities, within 90 days after the end of each Fiscal
Year of the Trust, annual financial statements of the Trust, including a balance
sheet of the Trust as of the end of such Fiscal Year, and the related statements
of income or loss.
(c) The Administrative Trustees shall cause to be duly prepared and
delivered to each of the Holders of Securities, an 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. Notwithstanding any right under the Code
to deliver any such statement at a later date, the Administrative Trustees shall
endeavor to deliver all such statements within 30 days after the end of each
Fiscal Year of the Trust.
(d) 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.
SECTION 10.3 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 Property Account and no other funds of the Trust shall be deposited in the
Property 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 Property Account.
SECTION 10.4 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 claimed over withholding, Holders shall be limited to an action
against the applicable jurisdiction. If the
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amount required to be withheld was not withheld from actual Distributions made,
the Trust may reduce subsequent Distributions by the amount of such withholding.
ARTICLE 11
AMENDMENTS AND MEETINGS
SECTION 11.1 Amendments.
(a) Except as otherwise provided in this Trust Agreement or by any
applicable terms of the Securities, this Trust Agreement may only be amended by
a written instrument approved and executed by the Sponsor and (i) the
Administrative Trustees (or, if there are more than two Administrative Trustees,
a majority of the Administrative Trustees), (ii) the Property Trustee; and (iii)
the Delaware Trustee if the amendment affects the rights, powers, duties,
obligations or immunities of the Delaware Trustee.
(b) No amendment shall be made, and any such purported amendment shall be
void and ineffective:
(i) unless, the Property Trustee shall have first received:
a. an Officers' Certificate from each of the Trust and the Sponsor
that such amendment is permitted by, and conforms to, the terms of this Trust
Agreement (including the terms of the Securities) and that all conditions
precedent to the execution and delivery of such amendment have been satisfied;
and
b. an opinion of counsel (who may be counsel to the Sponsor or the
Trust) that such amendment is permitted by, and conforms to, the terms of this
Trust Agreement (including the terms of the Securities) and that all conditions
precedent to the execution and delivery of such amendment have been satisfied;
and
(ii) to the extent the result of such amendment would be to:
a. cause the Trust to be classified other than as a grantor trust
for United States federal income tax purposes;
b. reduce or otherwise adversely affect the powers of the Property
Trustee in contravention of the Trust Indenture Act; or
c. cause the Trust to be deemed to be an Investment Company
required to be registered under the Investment Company Act.
(c) If the Trust has issued any Securities that remain outstanding:
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<PAGE>
(i) any amendment that would (a) change the amount or timing of any
distribution of the Securities or otherwise adversely affect the amount of any
distribution required to be made in respect of the Securities as of a specified
date or (b) restrict the right of a Holder of Securities to institute suit for
the enforcement of any such payment on or after such date, will entitle the
Holders of such Securities, voting together as a single class, to vote on such
amendment or proposal and such amendment or proposal shall not be effective
except with the approval of each of the Holders of the Securities affected
thereby; and
(ii) any amendment that would (a) adversely affect the powers,
preferences or special rights of the Securities, whether by way of amendment to
this Trust Agreement or otherwise or (b) result in the dissolution, winding-up
or termination of the Trust other than pursuant to the terms of this Trust
Agreement, will entitle the holders of the Securities voting together as a
single class to vote on such amendment or proposal and such amendment or
proposal shall not be effective except with the approval of 66 2/3% of the
Securities affected thereby; provided that, if any amendment or proposal
referred to in clause (a) above would adversely affect only the Preferred
Securities or the Common Securities, then only the affected class will be
entitled to vote on such amendment or proposal and such amendment or proposal.
(d) This Section 11.1 shall not be amended without the consent of all
of the Holders of the Securities.
(e) Article 4 shall not be amended without the consent of the Holders
of a Majority in Liquidation Amount of the Common Securities.
(f) The rights of the Holders of the Common Securities under Article
6 to increase or decrease the number of, and appoint and remove Trustees shall
not be amended without the consent of the Holders of a Majority in Liquidation
Amount of the Common Securities.
(g) Notwithstanding Section 11.1(c), this Trust Agreement may be
amended without the consent of the Holders of the Securities, if such amendment
does not adversely affect in any material respect the rights of the holders of
the Securities, to:
(i) cure any ambiguity;
(ii) correct or supplement any provision in this Trust Agreement that
may be defective or inconsistent with any other provision of this Trust
Agreement or to make any other provisions with respect to matters or questions
arising under this Trust Agreement that shall not be inconsistent with the other
provisions of this Trust Agreement;
(iii) add to the covenants, restrictions or obligations of the Sponsor;
(iv) to conform to any change in Rule 3a-5 of the Investment Company
Act or written change in interpretation or application of Rule 3a-5 of the
Investment Company Act by any legislative body, court, government agency or
regulatory authority; or
57
<PAGE>
(v) to modify, eliminate and add to any provision of this Trust
Agreement to ensure that the Trust will be classified as a grantor trust for
United States federal income tax purposes at all times that any Securities are
outstanding or to ensure that the Trust will not be required to register as an
Investment Company under the Investment Company Act.
(h) Neither the Property Trustee nor the Delaware Trustee shall be
required to sign any amendment that affects its rights, duties, obligations or
immunities under this Declaration or otherwise.
SECTION 11.2 Meetings of the Holders of Securities; Action by Written
Consent.
(a) Meetings of the Holders of any class of Securities may be called
at any time by the Administrative Trustees (or as provided in the terms of the
Securities) to consider and act on any matter on which Holders of such class of
Securities are entitled to act under the terms of this Trust Agreement, the
terms of the Securities or the rules of any stock exchange on which the
Preferred Securities are listed or admitted for trading. The Administrative
Trustees shall call a meeting of the Holders of such class if directed to do so
by the Holders of at least 10% in Liquidation Amount of such class of
Securities. Such direction shall be given by delivering to the Administrative
Trustees one or more calls in a writing stating that the signing Holders of
Securities wish to call a meeting and indicating the general or specific purpose
for which the meeting is to be called. Any Holders of Securities calling a
meeting shall specify in writing the Certificates held by the Holders of
Securities exercising the right to call a meeting and only those Securities
specified shall be counted for purposes of determining whether the required
percentage set forth in the second sentence of this paragraph has been met.
(b) Except to the extent otherwise provided in the terms of the
Securities, the following provisions shall apply to meetings of Holders of
Securities:
(i) notice of any such meeting shall be given to all the
Holders of Securities having a right to vote thereat at least 7 days and not
more than 60 days before the date of such meeting. Whenever a vote, consent or
approval of the Holders of Securities is permitted or required under this Trust
Agreement or the rules of any stock exchange on which the Preferred Securities
are listed or admitted for trading, such vote, consent or approval may be given
at a meeting of the Holders of Securities. Any action that may be taken at a
meeting of the Holders of Securities may be taken without a meeting and without
prior notice if a consent in writing setting forth the action so taken is signed
by the Holders of Securities owning not less than the minimum amount of
Securities in liquidation amount that would be necessary to authorize or take
such action at a meeting at which all Holders of Securities having a right to
vote thereon were present and voting. Prompt notice of the taking of action
without a meeting shall be given to the Holders of Securities entitled to vote
who have not consented in writing. The Administrative Trustees may specify that
any written ballot submitted to the Security Holders for the purpose of taking
any action without a meeting shall be returned to the Trust within the time
specified by the Administrative Trustees;
(ii) each Holder of a Security may authorize any Person to act
for it by proxy on all matters in which a Holder of Securities is entitled to
participate, including waiving notice of any
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<PAGE>
meeting, or voting or participating at a meeting. No proxy shall be valid after
the expiration of 11 months from the date thereof unless otherwise provided in
the proxy. Every proxy shall be revocable at the pleasure of the Holder of
Securities executing such proxy. Except as otherwise provided herein, all
matters relating to the giving, voting or validity of proxies shall be governed
by the General Corporation Law of the State of Delaware relating to proxies, and
judicial interpretations thereunder, as if the Trust were a Delaware corporation
and the Holders of the Securities were stockholders of a Delaware corporation;
(iii) each meeting of the Holders of the Securities shall be
conducted by the Administrative Trustees or by such other Person that the
Administrative Trustees may designate; and
(iv) unless the Business Trust Act, this Trust Agreement, the
terms of the Securities, the Trust Indenture Act or the listing rules of any
stock exchange on which the Preferred Securities are then listed for trading,
otherwise provides, the Administrative Trustees, in their sole discretion, shall
establish all other provisions relating to meetings of Holders of Securities,
including notice of the time, place or purpose of any meeting at which any
matter is to be voted on by any Holders of Securities, waiver of any such
notice, action by consent without a meeting, the establishment of a record date,
quorum requirements, voting in person or by proxy or any other matter with
respect to the exercise of any such right to vote.
ARTICLE 12
REPRESENTATIONS OF PROPERTY TRUSTEE
AND DELAWARE TRUSTEE
SECTION 12.1 Representations and Warranties of the Property Trustee.
The Trustee that acts as initial Property Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Trust Agreement,
and each Successor Property Trustee represents and warrants to the Trust and the
Sponsor at the time of the Successor Property Trustee's acceptance of its
appointment as Property Trustee that:
(a) the Property Trustee is a banking corporation, validly existing
and in good standing under the laws of the jurisdiction of its incorporation or
organization, with trust power and authority to execute and deliver, and to
carry out and perform its obligations under the terms of, this Trust Agreement;
(b) the Property Trustee satisfies the requirements set forth in
Section 6.3(a);
(c) the execution, delivery and performance by the Property Trustee
of this Trust Agreement has been duly authorized by all necessary corporate
action on the part of the Property Trustee. This Trust Agreement has been duly
executed and delivered by the Property Trustee, and it constitutes a legal,
valid and binding obligation of the Property Trustee, enforceable against it in
accordance with its terms, subject to applicable bankruptcy, reorganization,
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<PAGE>
moratorium, insolvency and other similar laws affecting creditors' rights
generally and to general principles of equity and the discretion of the court
(regardless of whether the enforcement of such remedies is considered in a
proceeding in equity or at law);
(d) the execution, delivery and performance of this Trust Agreement
by the Property Trustee does not conflict with or constitute a breach of the
articles of association or incorporation, as the case may be, or the by-laws (or
other similar organizational documents) of the Property Trustee; and
(e) no consent, approval or authorization of, or registration with
or notice to, any State (which term, in the case of the initial Property
Trustee, shall mean the State of New York) or federal banking authority having
jurisdiction over the trust powers of the Property Trustee is required for the
execution, delivery or performance by the Property Trustee of this Trust
Agreement.
SECTION 12.2 Representations and Warranties of the Delaware Trustee.
The Trustee that acts as initial Delaware Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Trust Agreement,
and each Successor Delaware Trustee represents and warrants to the Trust and the
Sponsor at the time of the Successor Delaware Trustee's acceptance of its
appointment as Delaware Trustee that:
(a) the Delaware Trustee satisfies the requirements set forth in
Section 6.2, satisfies Trust Section 3807 of the Business Trust Act and has the
power and authority to execute and deliver, and to carry out and perform its
obligations under the terms of, this Trust Agreement and, if it is not a natural
person, is duly organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation or organization;
(b) the Delaware Trustee has been authorized to perform its
obligations under the Certificate of Trust and this Trust Agreement. This Trust
Agreement under Delaware law constitutes a legal, valid and binding obligation
of the Delaware Trustee, enforceable against it in accordance with its terms,
subject to applicable bankruptcy, reorganization, moratorium, insolvency and
other similar laws affecting creditors' rights generally and to general
principles of equity and the discretion of the court (regardless of whether the
enforcement of such remedies is considered in a proceeding in equity or at law);
and
(c) no consent, approval or authorization of, or registration with
or notice to, the State of Delaware or federal banking authority is required for
the execution, delivery or performance by the Delaware Trustee of this Trust
Agreement
ARTICLE 13
MISCELLANEOUS
SECTION 13.1 Notices.
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All notices provided for in this Trust Agreement shall be in writing,
duly signed by the party giving such notice, and shall be delivered, telecopied
or mailed by registered or certified mail, as follows:
(a) if given to the Trust, in care of the Administrative Trustees at
the Trust's mailing address set forth below (or such other address as the Trust
may give notice of to the Property Trustee, the Delaware Trustee and the Holders
of the Securities):
c/o Dominion Resources, Inc.
120 Tredegar Street
Richmond, Virginia 23219
(b) if given to the Delaware Trustee, at the mailing address set
forth below (or such other address as the Delaware Trustee may give notice of to
the Administrative Trustees, the Property Trustee and the Holders of the
Securities):
Chase Manhattan Bank Delaware
1201 Market Street
Wilmington, Delaware 19801
Attention: Corporate Trust
Administration
(c) if given to the Property Trustee, at its Corporate Trust Office
(or such other address as the Property Trustee may give notice of to the
Administrative Trustees, the Delaware Trustee and the Holders of the
Securities).
(d) if given to the Holder of the Common Securities, at the mailing
address of the Sponsor set forth below (or such other address as the Holder of
the Common Securities may give notice of to the Property Trustee, the Delaware
Trustee and the Trust):
(e) if given to any other Holder, at the address set forth on the
Security Register.
All such notices shall be deemed to have been given when received in person,
telecopied with receipt confirmed or mailed by first class mail, postage prepaid
except that if a notice or other document is refused delivery or cannot be
delivered because of a changed address of which no notice was given, such notice
or other document shall be deemed to have been delivered on the date of such
refusal or inability to deliver.
SECTION 13.2 Governing Law.
This Trust Agreement and the rights of the parties hereunder shall be governed
by and interpreted in accordance with the laws of the State of Delaware,
provided that the immunities and standard of care of the Property Trustee in
connection with the administration of its trusts hereunder shall be governed by
and interpreted in accordance with the laws of the jurisdiction of its
incorporation.
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SECTION 13.3 Intention of the Parties.
It is the intention of the parties hereto that the Trust be classified
for United States federal income tax purposes as a grantor trust. The provisions
of this Trust Agreement shall be interpreted in a manner consistent with such
classification.
SECTION 13.4 Headings.
Headings contained in this Trust Agreement are inserted for convenience
of reference only and do not affect the interpretation of this Trust Agreement
or any provision hereof.
SECTION 13.5 Successors and Assigns.
Whenever in this Trust Agreement any of the parties hereto is named or
referred to, the successors and assigns of such party shall be deemed to be
included, and all covenants and agreements in this Trust Agreement by the
Sponsor and the Trustees shall bind and inure to the benefit of their respective
successors and assigns, whether so expressed.
SECTION 13.6 Partial Enforceability.
If any provision of this Trust Agreement, or the application of such
provision to any Person or circumstance, shall be held invalid, the remainder of
this Trust Agreement, or the application of such provision to persons or
circumstances other than those to which it is held invalid, shall not be
affected thereby.
SECTION 13.7 Counterparts.
This Trust Agreement may contain more than one counterpart of the
signature page and this Trust Agreement may be executed by the affixing of the
signature of each of the Trustees and the Sponsor to one of such counterpart
signature pages. All of such counterpart signature pages shall be read as though
one, and they shall have the same force and effect as though all of the signers
had signed a single signature page.
[THE REST OF THIS PAGE HAS BEEN LEFT BLANK INTENTIONALLY; THE SIGNATURE
PAGE FOLLOWS.]
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IN WITNESS WHEREOF, the undersigned have caused these presents to be
executed as of the day and year first above written.
DOMINION RESOURCES, INC.,
as Sponsor, as Common Securities Holder
and as Debenture Issuer
By:
----------------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
as Property Trustee
By:
----------------------------------------
Name:
Title:
CHASE MANHATTAN BANK-DELAWARE,
as Delaware Trustee
By:
----------------------------------------
Name:
Title:
Thomas N.Chewning, as Administrative
Trustee
By:
----------------------------------------
Name:
Title:
G. Scott Hetzer, as Administrative Trustee
By:
----------------------------------------
Name: G. Scott Hetzer
Title: Administrative Trustee
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EXHIBIT A
[IF THE CAPITAL SECURITY IS TO BE A GLOBAL CAPITAL SECURITY, INSERT
THE FOLLOWING: THIS PREFERRED SECURITY IS A GLOBAL PREFERRED SECURITY WITHIN THE
MEANING OF THE TRUST AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE
NAME OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE "DEPOSITARY"),
OR A NOMINEE OF THE DEPOSITARY. THIS PREFERRED SECURITY IS EXCHANGEABLE FOR
PREFERRED SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
TRUST AGREEMENT AND NO TRANSFER OF THIS PREFERRED SECURITY (OTHER THAN A
TRANSFER OF THIS SECURITY 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 LIMITED CIRCUMSTANCES.
UNLESS THIS PREFERRED SECURITY CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITARY TO THE DEBENTURE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY PREFERRED SECURITY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
REGISTERED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
CERTIFICATE NO.___________ NUMBER OF PREFERRED SECURITIES:___________
CUSIP NO._________________
CERTIFICATE EVIDENCING __% PREFERRED SECURITIES
OF
DOMINION RESOURCES CAPITAL TRUST [ ]
% PREFERRED SECURITIES
(LIQUIDATION AMOUNT $__ PER PREFERRED SECURITY)
FULLY AND UNCONDITIONALLY
GUARANTEED BY DOMINION RESOURCES, INC.
DOMINION RESOURCES CAPITAL TRUST [ ], 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 _____ preferred securities of the
Trust representing undivided beneficial ownership interests in the assets of the
Trust designated the "__% Preferred Security" (liquidation amount $__ per
Preferred Security) (the "Preferred Securities"). The Preferred Securities are
transferable on the register 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 the
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Trust Agreement (as defined below). The designation, rights, privileges,
restrictions, preferences and other terms and provisions of the Preferred
Securities represented hereby are issued and shall in all respects be subject to
the provisions of the Amended and Restated Trust Agreement of the Trust, dated
as of , ____, as the same may be amended from time to time (the "Trust
Agreement"), by and among DOMINION RESOURCES, INC., _____________,
________________, and ________________, as Administrative Trustees, The Chase
Manhattan Bank, as Property Trustee, Chase Manhattan Bank Delaware, as Delaware
Trustee and the Holders. Capitalized terms used herein but not defined shall
have the meaning given them in the Trust Agreement. The Holder is entitled to
the benefits of the Guarantee to the extent described therein. The Sponsor will
provide a copy of the Trust Agreement, the Guarantee and the Indenture to a
Holder without charge upon written request to the Sponsor at its principal place
of business. Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder. By acceptance, the Holder
agrees to treat, for United States federal income tax purposes, the Debentures
as indebtedness and the Preferred Securities as evidence of undivided indirect
beneficial ownership interests in the Debentures.
IN WITNESS WHEREOF, the Trust has executed this certificate this
______ day of , ____.
DOMINION RESOURCES CAPITAL TRUST [ ]
By:
------------------------------------
Name:
Title: Administrative Trustee
This is one of the Preferred Securities referred to in the within-mentioned
Trust Agreement.
THE CHASE MANHATTAN BANK,
as Property Trustee
By:
------------------------------------
Authorized Officer
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EXHIBIT B
TRANSFER OF THIS CERTIFICATE IS SUBJECT TO THE
CONDITIONS SET FORTH IN THE TRUST AGREEMENT
REFERRED TO BELOW.
CERTIFICATE NO.______ NUMBER OF COMMON SECURITIES:______________
CERTIFICATE EVIDENCING COMMON SECURITIES
OF
DOMINION RESOURCES CAPITAL TRUST [ ]
% COMMON SECURITIES
(LIQUIDATION AMOUNT $__ PER COMMON SECURITY)
DOMINION RESOURCES CAPITAL TRUST [ ], a statutory business trust
created under the laws of the State of Delaware (the "Trust"), hereby certifies
that DOMINION RESOURCES, INC. (the "Holder") is the registered owner of common
securities of the Trust representing an undivided beneficial ownership interest
in the assets of the Trust designated the "_____% Common Securities"
(liquidation amount $__ per Common Security) (the "Common Securities"). The
Common Securities are not transferable and any attempted transfer thereof shall
be void except as permitted by applicable law and by Section 7.9(b)(ii) of the
Trust Agreement (as defined below). The designation, rights, privileges,
restrictions, preferences and other terms and provisions of the Common
Securities represented hereby are issued and shall in all respects be subject to
the provisions of the Amended and Restated Trust Agreement of the Trust, dated
as of ____________ ___, ____ (as the same may be amended from time to time, the
"Trust Agreement"), by and among DOMINION RESOURCES, INC., as Sponsor,
______________, _______________ and _______________, as Administrative Trustees,
and, The Chase Manhattan Bank, as Property Trustee, Chase Manhattan Bank
Delaware, as Delaware Trustee. and the Holders. The Holder is entitled to the
benefits of the Guarantee to the extent described therein. Capitalized terms
used herein but not defined shall have the meaning given them in the Trust
Agreement. The Sponsor will provide a copy of the Trust Agreement, the Guarantee
and the Indenture to the Holder without charge upon written request to the
Sponsor at its principal place of business. Upon receipt of this certificate,
the Holder is bound by the Trust Agreement and is entitled to the benefits
thereunder. By acceptance, the Holder agrees to treat, for United States federal
income tax purposes, the Debentures as indebtedness and the Common Securities as
evidence of an undivided indirect beneficial ownership interest in the
Debentures.
IN WITNESS WHEREOF, the Trust has executed this certificate this
____ day of , ____.
DOMINION RESOURCES CAPITAL TRUST [ ]
By:
------------------------------------
Name:
Title: Administrative Trustee
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Exhibit 4(xv)
DOMINION RESOURCES, INC.
And
________________________,
As Agent
PURCHASE CONTRACT AGREEMENT
Dated as of __________ ____, ____
<PAGE>
TABLE OF CONTENTS
ARTICLE I
<TABLE>
<S> <C>
Section 1.1 Definitions................................................................... 1
Section 1.2 Compliance Certificates and Opinions.......................................... 11
Section 1.3 Form of Documents Delivered to Agent.......................................... 12
Section 1.4 Acts of Holders; Record Dates................................................. 13
Section 1.5 Notices....................................................................... 14
Section 1.6 Notice to Holders; Waiver..................................................... 15
Section 1.7 Effect of Headings and Table of Contents...................................... 15
Section 1.8 Successors and Assigns........................................................ 15
Section 1.9 Separability Clause........................................................... 16
Section 1.10 Benefits of Agreement......................................................... 16
Section 1.11 Governing Law................................................................. 16
Section 1.12 Legal Holidays................................................................ 16
Section 1.13 Counterparts.................................................................. 16
Section 1.14 Inspection of Agreement....................................................... 17
ARTICLE II
Certificate Forms
Section 2.1 Forms of Certificates Generally............................................... 17
Section 2.2 Form of Agent's Certificate of Authentication................................. 18
ARTICLE III
The Securities
Section 3.1 Amount; Form and Denominations................................................ 18
Section 3.2 Rights and Obligations Evidenced by the Certificates.......................... 19
Section 3.3 Execution, Authentication, Delivery and Dating................................ 19
Section 3.4 Temporary Certificates........................................................ 20
Section 3.5 Registration; Registration of Transfer and Exchange........................... 21
Section 3.6 Book-Entry Interests.......................................................... 22
Section 3.7 Notices to Holders............................................................ 23
Section 3.8 Appointment of Successor Clearing Agency...................................... 23
Section 3.9 Definitive Certificates....................................................... 23
Section 3.10 Mutilated, Destroyed, Lost and Stolen Certificates............................ 24
Section 3.11 Persons Deemed Owners......................................................... 25
Section 3.12 Cancellation.................................................................. 25
Section 3.13 Creation of Treasury SPUS by Substitution of Treasury Securities............. 26
Section 3.14 Reestablishment of Corporate SPUS............................................. 27
Section 3.15 Transfer of Collateral upon Occurrence of Termination Event................... 28
Section 3.16 No Consent to Assumption...................................................... 29
</TABLE>
<PAGE>
<TABLE>
ARTICLE IV
The Preferred Securities
<S> <C>
Section 4.1 Interest Payments; Rights to Interest Payments Preserved....................... 29
Section 4.2 Notice and Voting.............................................................. 30
ARTICLE V
The Purchase Contracts
Section 5.1 Purchase of Shares of Common Stock............................................. 31
Section 5.2 Contract Adjustment Payments................................................... 33
Section 5.3 Deferral of Contract Adjustment Payments....................................... 33
Section 5.4 Payment of Purchase Price...................................................... 34
Section 5.5 Issuance of Shares of Common Stock............................................. 38
Section 5.6 Adjustment of Settlement Rate.................................................. 38
Section 5.7 Notice of Adjustments and Certain Other Events................................. 45
Section 5.8 Termination Event; Notice...................................................... 46
Section 5.9 Early Settlement............................................................... 46
Section 5.10 No Fractional Shares........................................................... 48
Section 5.11 Charges and Taxes.............................................................. 48
ARTICLE VI
Remedies
Section 6.1 Unconditional Right of Holders to Receive Contract Adjustment Payments
and to Purchase Shares of Common Stock......................................... 48
Section 6.2 Restoration of Rights and Remedies............................................. 49
Section 6.3 Rights and Remedies Cumulative................................................. 49
Section 6.4 Delay or Omission Not Waiver................................................... 49
Section 6.5 Undertaking for Costs.......................................................... 49
Section 6.6 Waiver of Stay or Extension Laws............................................... 50
ARTICLE VII
The Agent
Section 7.1 Certain Duties and Responsibilities............................................ 50
Section 7.2 Notice of Default.............................................................. 51
Section 7.3 Certain Rights of Agent........................................................ 51
Section 7.4 Not Responsible for Recitals or Issuance of Securities......................... 52
Section 7.5 May Hold Securities............................................................ 52
Section 7.6 Money Held in Custody.......................................................... 52
Section 7.7 Compensation and Reimbursement................................................. 53
Section 7.8 Corporate Agent Required; Eligibility.......................................... 53
Section 7.9 Resignation and Removal; Appointment of Successor.............................. 53
Section 7.10 Acceptance of Appointment by Successor......................................... 55
Section 7.11 Merger, Conversion, Consolidation or Succession to Business.................... 55
Section 7.12 Preservation of Information; Communications to Holders......................... 55
Section 7.13 No Obligations of Agent........................................................ 56
</TABLE>
ii
<PAGE>
<TABLE>
<S> <C>
Section 7.14 Tax Compliance.................................................................. 56
ARTICLE VIII
Supplemental Agreements
Section 8.1 Supplemental Agreements Without Consent of Holders.............................. 57
Section 8.2 Supplemental Agreements With Consent of Holders................................. 57
Section 8.3 Execution of Supplemental Agreements............................................ 58
Section 8.4 Effect of Supplemental Agreements............................................... 59
Section 8.5 Reference to Supplemental Agreements............................................ 59
ARTICLE IX
Consolidation, Merger, Sale or Conveyance
Section 9.1 Covenant Not to Consolidate, Merger, Sell or Convey Property Except
Under Certain Conditions........................................................ 59
Section 9.2 Rights and Duties of Successor Corporation...................................... 60
Section 9.3 Officers' Certificate and Opinion of Counsel Given to Purchase Contract
Agent........................................................................... 60
ARTICLE X
Covenants
Section 10.1 Performance Under Purchase Contracts............................................ 60
Section 10.2 Maintenance of Office or Agency................................................. 61
Section 10.3 Company to Reserve Common Stock................................................. 61
Section 10.4 Covenants as to Common Stock.................................................... 61
Section 10.5 Statements of Officers of the Company as to Default............................. 61
Section 10.6 ERISA........................................................................... 62
EXHIBIT A FORM OF CORPORATE SPUS CERTIFICATE
EXHIBIT B FORM OF TREASURY SPUS CERTIFICATE
EXHIBIT C INSTRUCTION TO PURCHASE CONTRACT AGENT
EXHIBIT D NOTICE FROM PURCHASE CONTRACT AGENT TO HOLDERS
EXHIBIT E NOTICE TO SETTLE BY SEPARATE CASH
EXHIBIT F NOTICE FROM PURCHASE CONTRACT AGENT TO COLLATERAL AGENT
</TABLE>
iii
<PAGE>
PURCHASE CONTRACT AGREEMENT, dated as of __________ ____, ____, between
DOMINION RESOURCES, INC., a Virginia corporation (the "Company"), and
________________________, a ____________________________, acting as purchase
contract agent for the Holders of Securities from time to time (the "Agent").
RECITALS
The Company has duly authorized the execution and delivery of this
Agreement and the Certificates evidencing the Securities.
All things necessary to make the Purchase Contracts, when the Certificates
are executed by the Company and authenticated, executed on behalf of the Holders
and delivered by the Agent, as provided in this Agreement, the valid obligations
of the Company, and to constitute these presents a valid agreement of the
Company, in accordance with its terms, have been done. For and in consideration
of the premises and the purchase of the Securities by the Holders thereof, it is
mutually agreed as follows:
ARTICLE I
Definitions and Other Provisions of General Application
SECTION 1.1 Definitions.
For all purposes of this 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, and
nouns and pronouns of the masculine gender include the feminine and neuter
genders;
(b) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles in the United States;
(c) the words "herein," "hereof" and "hereunder" and other words
of similar import refer to this Agreement as a whole and not to any particular
Article, Section, Exhibit or other subdivision;
(d) the following terms have the meanings given to them in the
Remarketing Agreement: (i) Remarketing; and (ii) Reset Rate, and
(e) the following terms have the meanings given to them in this
Section 1.1(e):
"Act" has the meaning, with respect to any Holder, specified in Section
1.4.
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"Adjusted Contract Adjustment Payment Rate," with respect to any Reset
Transaction, means the rate per annum that is the arithmetic average of the
rates quoted by two Reference Dealers selected by the Company or its successor
as the rate at which Contract Adjustment Payments should accrue so that the fair
market value, expressed in dollars, of a Corporate SPUS immediately after the
later of (i) public announcement of such Reset Transaction or (ii) public
announcement of a change in dividend policy in connection with such Reset
Transaction will equal the average Trading Price of a Corporate SPUS for the 20
Trading Days immediately preceding the date of public announcement of such Reset
Transaction; provided that the Adjusted Contract Adjustment Payment Rate shall
not be less than ____% per annum.
"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.
"Agent" means the Person named as the "Agent" in the first paragraph of
this Agreement until a successor Agent shall have become such pursuant to the
applicable provisions of this Agreement, and thereafter "Agent" shall mean such
Person.
"Agreement" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more agreements supplemental
hereto entered into pursuant to the applicable provisions hereof.
"Applicable Market Value" has the meaning specified in Section 5.1.
"Articles of Amendment" means the Articles of Amendment of the Company
under which the Shares are issued.
"Bankruptcy Code" means title 11 of the United States Code, or any other
law of the United States that from time to time provides a uniform system of
bankruptcy laws.
"Beneficial Owner" means, with respect to a Global Certificate, a Person
who is the beneficial owner of such Book-Entry Interest as reflected on the
books of the Clearing Agency or on the books of a Person maintaining an account
with such Clearing Agency (directly as a Clearing Agency Participant or as an
indirect participant, in each case in accordance with the rules of such Clearing
Agency).
"Board of Directors" means the board of directors of the Company or any
committee of that board duly authorized to act generally or in any particular
respect for the Company.
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"Book-Entry Interest" means a beneficial interest in a Global Certificate,
ownership and transfers of which shall be maintained and made through book
entries by a Clearing Agency as described in Section 3.6.
"Business Day" means any day other than a Saturday or Sunday or a day on
which banking institutions in New York City are authorized or required by law or
executive order to remain closed or a day on which the Indenture Trustee or the
Property Trustee is closed for business; provided that for purposes of the
second paragraph of Section 1.12 only, the term "Business Day" shall also be
deemed to exclude any day on which trading on the New York Stock Exchange, Inc.
is closed or suspended.
"Cash Settlement" has the meaning specified in Section 5.4(a)(i).
"Certificate" means a Corporate SPUS Certificate or a Treasury SPUS
Certificate.
"Clearing Agency" means an organization registered as a "Clearing Agency"
pursuant to Section 17A of the Exchange Act that is acting as a depositary for
the Securities and in whose name, or in the name of a nominee of that
organization, shall be registered a Global Certificate and which shall undertake
to effect book entry transfers and pledges of the Securities.
"Clearing Agency Participant" means a broker, dealer, bank, other financial
institution or other Person for whom from time to time the Clearing Agency
effects book entry transfers and pledges of securities deposited with the
Clearing Agency.
"Closing Price" has the meaning specified in Section 5.1.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collateral" has the meaning specified in Article I of the Pledge
Agreement.
"Collateral Account" has the meaning specified in Article I of the Pledge
Agreement.
Collateral Agent" means ________________________, as Collateral Agent under
the Pledge Agreement until a successor Collateral Agent shall have become such
pursuant to the applicable provisions of the Pledge Agreement, and thereafter
"Collateral Agent" shall mean the Person who is then the Collateral Agent
thereunder.
"Collateral Substitution" has the meaning specified in Section 3.13.
"Common Stock" means the Dominion Resources, Inc. common stock, without par
value.
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"Company" means the Person named as the "Company" in the first paragraph of
this instrument until a successor shall have become such pursuant to the
applicable provision of this Agreement, and thereafter "Company" shall mean such
successor.
"Company Resolution" 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 Agreement.
"Contract Adjustment Payments" means, (a) if a Reset Transaction has not
occurred, the fee payable by the Company in respect of each Purchase Contract,
equal to ___% per annum of the Stated Amount, or (b) following the occurrence of
a Reset Transaction, the Adjusted Contract Adjustment Payment Rate related to
such Reset Transaction until any succeeding Reset Transaction shall occur,
computed (i) for any full quarterly period on the basis of a 360-day year of
twelve 30-day months and (ii) for any period shorter than a full quarterly
period for which such payments are calculated, on the basis of a 30-day month
and, for periods of less than a month, the actual number of days elapsed per 30-
day month.
"Corporate SPUS" means the collective rights and obligations of a Holder of
a Corporate SPUS Certificate in respect of Shares, subject to the Pledge
thereof, and the related Purchase Contract.
"Corporate SPUS Certificate" means a certificate evidencing the rights and
obligations of a Holder in respect of the number of Corporate SPUS specified on
such certificate, substantially in the form of Exhibit A hereto.
"Corporate SPUS Register" and "Corporate SPUS Registrar" have the
respective meanings specified in Section 3.5.
"Corporate Trust Office" means the principal corporate trust office of the
Agent at which, at any particular time, its corporate trust business shall be
administered, which office at the date hereof is located at
________________________, ___________________, Attention: _______________.
"Current Market Price" has the meaning specified in Section 5.6(a)(8).
"Depositary" means DTC until another Clearing Agency becomes its successor.
"Dividend Rate" means the percentage rate per annum at which dividends will
be paid on each Share initially.
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"Dividend Yield," on any security for any period, means the dividends paid
or proposed to be paid pursuant to an announced dividend policy on such security
for such period divided by, if with respect to dividends paid on such security,
the average Closing Price of such security during such period and, if with
respect to dividends so proposed to be paid on such security, the Closing Price
of such security on the effective date of the related Reset Transaction.
"DTC" means The Depository Trust Company, the initial Clearing Agency.
"Early Settlement" has the meaning specified in Section 5.9(a).
"Early Settlement Amount" has the meaning specified in Section 5.9(a).
"Early Settlement Date" has the meaning specified in Section 5.9(a).
"Early Settlement Rate" has the meaning specified in Section 5.9(b).
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Exchange Act" means the Securities Exchange Act of 1934 and any statute
successor thereto, in each case as amended from time to time, and the rules and
regulations promulgated thereunder.
"Expiration Date" has the meaning specified in Section 1.4(e).
"Expiration Time" has the meaning specified in Section 5.6(a)(6).
"Global Certificate" means a Certificate that evidences all or part of the
Securities and is registered in the name of a Clearing Agency or a nominee
thereof.
"Holder" means, with respect to a Security, the Person in whose name the
Security evidenced by a Corporate SPUS Certificate and/or a Treasury SPUS
Certificate is registered in the related Corporate SPUS Register and/or the
Treasury SPUS Register, as the case may be; provided, however, that in
determining whether the Holders of the requisite number of Corporate SPUS and/or
Treasury SPUS have voted on any matter, then for the purpose of such
determination only (and not for any other purpose hereunder), if the Security
remains in the form of one or more Global Certificates and if the Clearing
Agency which is the holder of such Global Certificate has sent an omnibus proxy
assigning voting rights to the Clearing Agency Participants to whose accounts
the Securities are credited on the record date, the term "Holder" shall mean
such Clearing Agency Participant acting at the direction of the Beneficial
Owners.
"Issuer Order" or "Issuer Request" means a written order or request signed
in the name of the Company by its Chairman of the Board, its President or one of
its Vice
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Presidents, and by its Treasurer, an Assistant Treasurer, its Secretary or an
Assistant Secretary, and delivered to the Agent.
"NYSE" has the meaning specified in Section 5.1.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, its President or one of its Vice Presidents, and by the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary of the Company, and
delivered to the Agent. Any Officers' Certificate delivered with respect to
compliance with a condition or covenant provided for in this Agreement shall
include:
(i) a statement that each officer signing the Officers' Certificate
has read the covenant or condition and the definitions relating thereto;
(ii) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers'
Certificate;
(iii) 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
(iv) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
to the Company (and who may be an employee of the Company), and who shall be
reasonably acceptable to the Agent. An opinion of counsel may rely on
certificates as to matters of fact.
"Outstanding Securities" means, with respect to any Corporate SPUS or
Treasury SPUS and as of the date of determination, all Corporate SPUS or
Treasury SPUS evidenced by Certificates theretofore authenticated, executed and
delivered under this Agreement, except:
(i) If a Termination Event has occurred, (i) Treasury SPUS and (ii)
Corporate SPUS for which the underlying Shares have been theretofore
deposited with the Agent in trust for the Holders of such Corporate SPUS;
(ii) Corporate SPUS and Treasury SPUS evidenced by Certificates
theretofore cancelled by the Agent or delivered to the Agent for
cancellation or deemed cancelled pursuant to the provisions of this
Agreement; and
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(iii) Corporate SPUS and Treasury SPUS evidenced by Certificates in
exchange for or in lieu of which other Certificates have been
authenticated, executed on behalf of the Holder and delivered pursuant to
this Agreement, other than any such Certificate in respect of which there
shall have been presented to the Agent proof satisfactory to it that such
Certificate is held by a bona fide purchaser in whose hands the Corporate
SPUS or Treasury SPUS evidenced by such Certificate are valid obligations
of the Company; provided, however, that in determining whether the
Holders of the requisite number of the Corporate SPUS or Treasury SPUS
have given any request, demand, authorization, direction, notice, consent
or waiver hereunder, Corporate SPUS or Treasury SPUS owned by the Company
or any Affiliate of the Company shall be disregarded and deemed not to be
Outstanding Securities, except that, in determining whether the Agent
shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Corporate SPUS
or Treasury SPUS which a Responsible Officer of the Agent knows to be so
owned shall be so disregarded. Corporate SPUS or Treasury SPUS so owned
which have been pledged in good faith may be regarded as Outstanding
Securities if the pledgee establishes to the satisfaction of the Agent
the pledgee's right so to act with respect to such Corporate SPUS or
Treasury SPUS and that the pledgee is not the Company or any Affiliate of
the Company.
"Payment Date" means each ___________, ____, ___________, ____, __________
___ and ____________ ___, commencing _____________ ____, ____.
"Permitted Investments" has the meaning specified in Section 1 of the
Pledge Agreement.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint-stock company, limited
liability company, trust, unincorporated organization or government or any
agency or political subdivision thereof or any other entity of whatever nature.
"SPUS" means the collective reference to the Corporate SPUS and the
Treasury SPUS.
"Plan" means an employee benefit plan that is subject to ERISA, a plan or
individual retirement account that is subject to Section 4975 of the Code or any
entity whose assets are considered assets of any such plan.
"Pledge" means the pledge under the Pledge Agreement of the Shares or
the Treasury Securities in each case constituting a part of the Securities.
"Pledge Agreement" means the Pledge Agreement, dated as of the date hereof,
by and among the Company, the Collateral Agent, the Securities Intermediary and
the
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Agent, on its own behalf and as attorney-in-fact for the Holders from time to
time of the Securities.
"Pledged Shares" has the meaning specified in the Pledge Agreement.
"Pledged Treasury Securities" has the meaning specified in the Pledge
Agreement.
"Predecessor Certificate" means a Predecessor Corporate SPUS Certificate or
a Predecessor Treasury SPUS Certificate.
"Predecessor Corporate SPUS Certificate" of any particular Corporate SPUS
Certificate means every previous Corporate SPUS Certificate evidencing all or a
portion of the rights and obligations of the Company and the Holder under the
Corporate SPUS evidenced thereby; and, for the purposes of this definition, any
Corporate SPUS Certificate authenticated and delivered under Section 3.10 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Corporate SPUS
Certificate shall be deemed to evidence the same rights and obligations of the
Company and the Holder as the mutilated, destroyed, lost or stolen Corporate
SPUS Certificate.
"Predecessor Treasury SPUS Certificate" of any particular Treasury SPUS
Certificate means every previous Treasury SPUS Certificate evidencing all or a
portion of the rights and obligations of the Company and the Holder under the
Treasury SPUS evidenced thereby; and, for the purposes of this definition, any
Treasury SPUS Certificate authenticated and delivered under Section 3.10 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Treasury SPUS
Certificate shall be deemed to evidence the same rights and obligations of the
Company and the Holder as the mutilated, destroyed, lost or stolen Treasury SPUS
Certificate.
"Proceeds" has the meaning specified in Section 1 of the Pledge Agreement.
"Purchase Contract" means, with respect to any Security, the contract
forming a part of such Security and obligating the Company to (i) sell, and the
Holder of such Security to purchase, shares of Common Stock and (ii) pay the
Holder Contract Adjustment Payments, if any, in each case, on the terms and
subject to the conditions specified in Article Five hereof.
"Purchase Contract Settlement Date" means ______________.
"Purchase Contract Settlement Fund" has the meaning specified in Section
5.5.
"Purchase Price" has the meaning specified in Section 5.1.
"Purchased Shares" has the meaning specified in Section 5.6(a)(6).
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"Record Date" for the Contract Adjustment Payments payable on any Payment
Date means, as to any Global Certificate, the Business Day next preceding such
Payment Date, and as to any other Certificate, 15 Business Days prior to such
Payment Date.
"Reference Dealer" means a dealer engaged in trading of convertible
securities.
"Register" means the Corporate SPUS Register and the Treasury SPUS
Register.
"Registrar" means the Corporate SPUS Registrar and the Treasury SPUS
Registrar.
"Remarketing Agent" has the meaning specified in Section 5.4(b).
"Remarketing Agreement" means the Remarketing Agreement, dated as of
__________ ____, ____, between the Company and the Remarketing Agent.
"Reorganization Event" has the meaning specified in Section 5.6(b).
"Reset Transaction" means a merger, consolidation or statutory share
exchange to which the Person that is the issuer of the shares of Common Stock
for which the Purchase Contracts are then to be settled is a party, a sale of
all or substantially all assets of such Person, a recapitalization of such
shares or a distribution described in Section 5.6(a)(4) by such Person, and
after the effective date of such transaction, the Purchase Contracts are then to
be settled for shares of Common Stock of a Person (i) which had a Dividend Yield
for the four fiscal quarters immediately preceding the public announcement
thereof which was, or (ii) that announces a dividend policy prior to the
effective date thereof which policy, if implemented, would result in a Dividend
Yield on such common shares for the next four fiscal quarters which would be,
more than 250 basis points higher than the Dividend Yield on the shares of
Common Stock for which the Purchase Contracts are to be settled prior to such
effective date for the four fiscal quarters immediately preceding such public
announcement.
"Responsible Officer" means, with respect to the Agent, any officer of the
Agent assigned by the Agent to administer its corporate trust matters.
"Securities Intermediary" means _________________________________, as
Securities Intermediary under the Pledge Agreement until a successor Securities
Intermediary shall have become such pursuant to the applicable provisions of the
Pledge Agreement, and thereafter "Securities Intermediary" shall mean such
successor.
"Security" means a Corporate SPUS or a Treasury SPUS, as the case may be.
"Settlement Rate" has the meaning specified in Section 5.1.
"Shares" means the shares of Series [__] Preferred Stock to be issued by
the Company under the Articles of Amendment.
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"Stated Amount" means [$50] in cash.
"Termination Date" means the date, if any, on which a Termination Event
occurs.
"Termination Event" means the occurrence of any of the following events:
(i) at any time on or prior to the Purchase Contract
Settlement Date, a judgment, decree or court order shall have been
entered granting relief under the Bankruptcy Code, adjudicating the
Company to be insolvent, or approving as properly filed a petition
seeking reorganization or liquidation of the Company or any other
similar applicable federal or State law, and, unless such judgment,
decree or order shall have been entered within 60 days prior to the
Purchase Contract Settlement Date, such decree or order shall have
continued undischarged and unstayed for a period of 60 days;
(ii) a judgment, decree or court order for the appointment
of a receiver or liquidator or trustee or assignee in bankruptcy or
insolvency of the Company or of its property, or for the termination
or liquidation of its affairs, shall have been entered, and, unless
such judgment, decree or order shall have been entered within 60 days
prior to the Purchase Contract Settlement Date, such judgment, decree
or order shall have continued undischarged and unstayed for a period
of 60 days; or
(iii) at any time on or prior to the Purchase Contract
Settlement Date, the Company shall file a petition for relief under
the Bankruptcy Code, or shall consent to the filing of a bankruptcy
proceeding against it, or shall file a petition or answer or consent
seeking reorganization or liquidation under the Bankruptcy Code or any
other similar applicable federal or State law, or shall consent to the
filing of any such petition, or shall consent to the appointment of a
receiver or liquidator or trustee or assignee in bankruptcy or
insolvency of it or of its property, or shall make an assignment for
the benefit of creditors, or shall admit in writing its inability to
pay its debts generally as they become due.
"Threshold Appreciation Price" has the meaning specified in Section 5.1.
"TIA" means the Trust Indenture Act of 1939, as amended from time to time,
or any successor legislation.
"Trading Day" has the meaning specified in Section 5.1.
"Trading Price" of a security on any date of determination means (i) the
closing sale price (or, if no closing price is reported, the last reported sale
price) of a security
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(regular way) on the NYSE on such date, (ii) if such security is not listed for
trading on the NYSE on any such date, the closing sale price as reported in the
composite transactions for the principal United States securities exchange on
which such security is so listed, (iii) if such security is not so listed on a
United States national or regional securities exchange, the closing sale price
as reported by The Nasdaq Stock Market, Inc.; (iv) if such security is not so
reported, the price quoted by Interactive Data Corporation for such security or,
if Interactive Data Corporation is not quoting such price, a similar quotation
service selected by the Company, (v) if such security is not so quoted, the
average of the mid-point of the last bid and ask prices for such security from
at least two dealers recognized as market-makers for such security, or (vi) if
such security is not so quoted, the average of the last bid and ask prices for
such security from a Reference Dealer.
"Treasury SPUS" means, following the substitution of one or more Treasury
Securities for Shares as collateral to secure a Holder's obligations under a
Purchase Contract, the collective rights and obligations of a Holder of a
Treasury SPUS Certificate in respect of such Treasury Securities, subject, in
each case, to the Pledge thereof, and the related Purchase Contract.
"Treasury SPUS Certificate" means a certificate evidencing the rights and
obligations of a Holder in respect of the number of Treasury SPUS specified on
such certificate, substantially in the form of Exhibit A hereto.
"Treasury SPUS Register" and "Treasury SPUS Registrar" have the respective
meanings specified in Section 3.5.
"Treasury Securities" means zero-coupon U.S. Treasury Securities (CUSIP No.
___________) which are the principal strip of the ____% U.S. Treasury Securities
which mature on _________________.
"Underwriting Agreement" means the Underwriting Agreement, dated as of the
date hereof, between the Company and ___________________.
"Vice President" means any vice president, whether or not designated by a
number or a word or words added before or after the title "vice president."
SECTION 1.2 Compliance Certificates and Opinions.
Except as otherwise expressly provided by this Agreement, upon any
application or request by the Company to the Agent to take any action in
accordance with any provision of this Agreement, the Company shall furnish to
the Agent an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Agreement relating to the proposed action have been
complied with and, if requested by the Agent, 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 is specifically
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required by any provision of this Agreement relating to such particular
application or request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Agreement shall include:
(i) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(iii) a statement that, in the opinion of each such individual,
he or she has made such examination or investigation as is necessary
to enable such individual to express an informed opinion as to whether
or not such covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.3 Form of Documents Delivered to Agent.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents. Any
certificate or opinion of an officer of the Company may be based, insofar as it
relates to legal matters, upon a certificate or opinion of, or representations
by, counsel, unless such officer knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
the matters upon which its certificate or opinion is based are erroneous. Any
such certificate or Opinion of Counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by, an
officer or officers of the Company stating that the information with respect to
such factual matters is in the possession of the Company unless such counsel
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Agreement, they may, but need not, be consolidated and
form one instrument.
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SECTION 1.4 Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Agreement to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Agent and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders 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
Agreement and (subject to Section 7.1) conclusive in favor of the Agent and the
Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any manner which the Agent deems
sufficient.
(c) The ownership of Securities shall be proved by the Corporate SPUS
Register or the Treasury SPUS Register, as the case may be.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Certificate shall bind every future
Holder of the same Certificate and the Holder of every Certificate 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 Agent or the
Company in reliance thereon, whether or not notation of such action is made upon
such Certificate.
(e) The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities entitled to give, make or take
any request, demand, authorization, direction, notice, consent, waiver or other
action provided or permitted by this Agreement to be given, made or taken by
Holders of Securities. If any record date is set pursuant to this paragraph,
the Holders of the Outstanding Corporate SPUS and the Outstanding Treasury SPUS,
as the case may be, on such record date, and no other Holders, shall be entitled
to take the relevant action with respect to the Corporate SPUS or the Treasury
SPUS, as the case may be, whether or not such Holders remain Holders after such
record date; provided that no such action shall be effective hereunder unless
taken on or prior to the applicable Expiration Date by Holders of the requisite
number of Outstanding Securities on such record date. Nothing contained in this
paragraph shall be construed to prevent the Company from setting a new record
date for any action for which a record date has previously been set pursuant to
this paragraph (whereupon the record date previously set shall automatically and
with no action by any Person be cancelled and be of no effect), and nothing
contained in this paragraph shall be construed to render ineffective any action
taken by Holders of the requisite number of Outstanding Securities on the date
such action is taken. Promptly after any record date is set pursuant to this
paragraph, the Company, at its own expense, shall cause notice of
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such record date, the proposed action by Holders and the applicable Expiration
Date to be given to the Agent in writing and to each Holder of Securities in the
manner specified in Section 1.6.
With respect to any record date set pursuant to this Section, the Company
may designate any date as the "Expiration Date" and from time to time may change
the Expiration Date to any earlier or later day; provided that no such change
shall be effective unless notice of the proposed new Expiration Date is given to
the Agent in writing, and to each Holder of Securities in the manner specified
in Section 1.6, on or prior to the existing Expiration Date. If an Expiration
Date is not designated with respect to any record date set pursuant to this
Section, the Company shall be deemed to have initially designated the 180th day
after such record date as the Expiration Date with respect thereto, subject to
its right to change the Expiration Date as provided in this paragraph.
Notwithstanding the foregoing, no Expiration Date shall be later than the 180th
day after the applicable record date.
SECTION 1.5 Notices.
Any notice or communication is duly given if in writing and delivered in
Person or mailed by first-class mail (registered or certified, return receipt
requested), telecopier (with receipt confirmed) or overnight air courier
guaranteeing next day delivery, to the others' address; provided that notice
shall be deemed given to the Agent only upon receipt thereof:
If to the Agent:
______________________________
______________________________
______________________________
Telecopier No.: (___) ___-____
Attention: ___________________
If to the Company:
Dominion Resources, Inc.
120 Tredegar Street
Richmond, Virginia 23219
Telecopier No.: (804) 819-____
Attention:
If to the Collateral Agent:
_______________________________
_______________________________
_______________________________
Telecopier No.: (___) ___-____
Attention: ___________________
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If to the Securities Intermediary:
_______________________________
_______________________________
_______________________________
Telecopier No.: (___) ___-____
Attention: ___________________
SECTION 1.6 Notice to Holders; Waiver.
Where this Agreement provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at its address as it appears in the applicable Register, not
later than the latest date, and not earlier than the earliest date, prescribed
for the giving of such notice. In any case where notice to Holders is given by
mail, neither the failure to mail such notice, nor any defect in any notice so
mailed to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders. Where this Agreement provides for notice in any
manner, such notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the
Agent, but such filing shall not be a condition precedent to the validity of any
action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Agent shall constitute a
sufficient notification for every purpose hereunder.
SECTION 1.7 Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 1.8 Successors and Assigns.
All covenants and agreements in this Agreement by the Company shall bind
its successors and assigns, whether so expressed or not.
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SECTION 1.9 Separability Clause.
In case any provision in this Agreement or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions hereof and thereof shall not in any way be affected or
impaired thereby.
SECTION 1.10 Benefits of Agreement.
Nothing contained in this Agreement or in the Securities, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder and, to the extent provided hereby, the Holders, any
benefits or any legal or equitable right, remedy or claim under this Agreement.
The Holders from time to time shall be beneficiaries of this Agreement and shall
be bound by all of the terms and conditions hereof and of the Securities
evidenced by their Certificates by their acceptance of delivery of such
Certificates.
SECTION 1.11 Governing Law.
This Agreement and the Securities shall be governed by, and construed in
accordance with, the laws of the State of New York.
SECTION 1.12 Legal Holidays.
In any case where any Payment Date shall not be a Business Day,
notwithstanding any other provision of this Agreement or the Corporate SPUS
Certificates or the Treasury SPUS Certificates, payment of the Contract
Adjustment Payments, if any, shall not be made on such date, but such payments
shall be made on the next succeeding Business Day with the same force and effect
as if made on such Payment Date, provided that no interest shall accrue or be
payable by the Company or any Holder for the period from and after any such
Payment Date, except that, if such next succeeding Business Day is in the next
succeeding calendar year, such payment shall be made on the immediately
preceding Business Day with the same force and effect as if made on such Payment
Date.
In any case where any Purchase Contract Settlement Date shall not be a
Business Day, notwithstanding any other provision of this Agreement, the
Corporate SPUS Certificates or the Treasury SPUS Certificates, the Purchase
Contracts shall not be performed on such date, but the Purchase Contracts shall
be performed on the immediately following Business Day with the same force and
effect as if performed on the Purchase Contract Settlement Date.
SECTION 1.13 Counterparts.
This Agreement may be executed in any number of counterparts by the parties
hereto on separate counterparts, each of which, when so executed and delivered,
shall be deemed an original, but all such counterparts shall together constitute
one and the same instrument.
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SECTION 1.14 Inspection of Agreement.
A copy of this Agreement shall be available at all reasonable times during
normal business hours at the Corporate Trust Office for inspection by any Holder
or Beneficial Owner.
ARTICLE II
CERTIFICATE FORMS
SECTION 2.1 Forms of Certificates Generally.
The Corporate SPUS Certificates (including the form of Purchase Contract
forming part of each Corporate SPUS evidenced thereby) shall be in substantially
the form specified in Exhibit A hereto, with such letters, numbers or other
marks of identification or designation and such legends or endorsements printed,
lithographed or engraved thereon as may be required by the rules of any
securities exchange on which the Corporate SPUS are listed or any depositary
therefor, or as may, consistently herewith, be determined by the officers of
the Company executing such Corporate SPUS Certificates, as evidenced by their
execution of the Corporate SPUS Certificates.
The definitive Corporate SPUS Certificates shall be printed, lithographed
or engraved on steel engraved borders or may be produced in any other manner,
all as determined by the officers of the Company executing the Corporate SPUS
evidenced by such Corporate SPUS Certificates, consistent with the provisions of
this Agreement, as evidenced by their execution thereof.
The Treasury SPUS Certificates (including the form of Purchase Contract
forming part of the Treasury SPUS evidenced thereby) shall be in substantially
the form specified in Exhibit B hereto, with such letters, numbers or other
marks of identification or designation and such legends or endorsements printed,
lithographed or engraved thereon as may be required by the rules of any
securities exchange on which the Treasury SPUS may be listed or any depositary
therefor, or as may, consistently herewith, be determined by the officers of the
Company executing such Treasury SPUS Certificates, as evidenced by their
execution of the Treasury SPUS Certificates.
The definitive Treasury SPUS Certificates shall be printed, lithographed or
engraved on steel engraved borders or may be produced in any other manner, all
as determined by the officers of the Company executing the Treasury SPUS
evidenced by such Treasury SPUS Certificates, consistent with the provisions of
this Agreement, as evidenced by their execution thereof.
Every Global Certificate authenticated, executed on behalf of the Holders
and delivered hereunder shall bear a legend in substantially the following form:
"THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE PURCHASE
CONTRACT AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE
DEPOSITORY TRUST
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COMPANY, A NEW YORK CORPORATION (THE "DEPOSITARY"), OR A NOMINEE OF THE
DEPOSITARY. THIS CERTIFICATE IS EXCHANGEABLE FOR CERTIFICATES REGISTERED IN THE
NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE PURCHASE CONTRACT AGREEMENT AND NO TRANSFER OF
THIS CERTIFICATE (OTHER THAN A TRANSFER OF THIS CERTIFICATE 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
LIMITED CIRCUMSTANCES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REQUESTED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
REGISTERED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN."
SECTION 2.2 Form of Agent's Certificate of Authentication.
The form of the Agent's certificate of authentication of the Corporate SPUS
shall be in substantially the form specified on the form of the Corporate SPUS
Certificates.
The form of the Agent's certificate of authentication of the Treasury SPUS
shall be in substantially the form specified on the form of the Treasury SPUS
Certificates.
ARTICLE III
THE SECURITIES
SECTION 3.1 Amount; Form and Denominations.
The aggregate number of Securities evidenced by Certificates authenticated,
executed on behalf of the Holders and delivered hereunder is limited to
_____________, except for Certificates authenticated, executed and delivered
upon registration of transfer of, in exchange for, or in lieu of, other
Certificates pursuant to Section 3.4, 3.5, 3.10, 3.13, 3.14, 5.9 or 8.5.
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The Certificates shall be issuable only in registered form and only in
denominations of a single Corporate SPUS or Treasury SPUS and any integral
multiple thereof.
SECTION 3.2 Rights and Obligations Evidenced by the Certificates.
Each Corporate SPUS Certificate shall evidence the number of Corporate SPUS
specified therein, with each such Corporate SPUS representing (1) the ownership
by the Holder thereof of a beneficial interest in a Share, subject to the Pledge
of that Share by such Holder pursuant to the Pledge Agreement, and (2) the
rights and obligations of the Holder thereof and the Company under one Purchase
Contract. The Agent as attorney-in-fact for, and on behalf of, the Holder of
each Corporate SPUS shall pledge, pursuant to the Pledge Agreement, the Share
forming a part of such Corporate SPUS, to the Collateral Agent and grant to the
Collateral Agent a security interest in the right, title and interest of such
Holder in such Share for the benefit of the Company, to secure the obligation of
the Holder under each Purchase Contract to purchase Common Stock of the Company.
Prior to the purchase of shares of Common Stock, if any, under each Purchase
Contract, such Purchase Contract shall not entitle the Holder of a Corporate
SPUS Certificate to any of the rights of a holder of shares of Common Stock,
including, without limitation, the right to vote or receive any dividends or
other payments or to consent or to receive notice as a shareholder in respect
of the meetings of shareholders or for the election of directors of the Company
or for any other matter, or any other rights whatsoever as a shareholder of the
Company.
Each Treasury SPUS Certificate shall evidence the number of Treasury SPUS
specified therein, with each such Treasury SPUS representing (1) the ownership
by the Holder thereof of a 1/20 undivided beneficial interest in a Treasury
Security with a principal amount equal to $1,000, subject to the Pledge of such
Treasury Security by such Holder pursuant to the Pledge Agreement, and (2) the
rights and obligations of the Holder thereof and the Company under one Purchase
Contract. Prior to the purchase of shares of Common Stock under each Purchase
Contract, such Purchase Contracts shall not entitle the Holder of a Treasury
SPUS Certificate to any of the rights of a holder of shares of Common Stock,
including, without limitation, the right to vote or receive any dividends or
other payments or to consent or to receive notice as a shareholder in respect of
the meetings of shareholders or for the election of directors of the Company or
for any other matter, or any other rights whatsoever as a shareholder of the
Company.
SECTION 3.3 Execution, Authentication, Delivery and Dating.
Subject to the provisions of Sections 3.13 and 3.14 hereof, upon the
execution and delivery of this Agreement, and at any time and from time to time
thereafter, the Company may deliver Certificates executed by the Company to the
Agent for authentication, execution on behalf of the Holders and delivery,
together with its Issuer Order for authentication of such Certificates, and the
Agent in accordance with such Issuer Order shall authenticate, execute on behalf
of the Holders and deliver such Certificates.
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<PAGE>
The Certificates shall be executed on behalf of the Company by its Chairman
of the Board, its President or one of its Vice Presidents. The signature of any
of these officers on the Certificates may be manual or facsimile.
Certificates bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Certificates or did not
hold such offices at the date of such Certificates.
No Purchase Contract evidenced by a Certificate shall be valid until such
Certificate has been executed on behalf of the Holder by the manual signature of
an authorized signatory of the Agent, as such Holder's attorney-in-fact. Such
signature by an authorized signatory of the Agent shall be conclusive evidence
that the Holder of such Certificate has entered into the Purchase Contracts
evidenced by such Certificate.
Each Certificate shall be dated the date of its authentication.
No Certificate shall be entitled to any benefit under this Agreement or be
valid or obligatory for any purpose unless there appears on such Certificate a
certificate of authentication substantially in the form provided for herein
executed by an authorized signatory of the Agent by manual signature, and such
certificate upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered
hereunder.
SECTION 3.4 Temporary Certificates.
Pending the preparation of definitive Certificates, the Company shall
execute and deliver to the Agent, and the Agent shall authenticate, execute on
behalf of the Holders, and deliver, in lieu of such definitive Certificates,
temporary Certificates which are in substantially the form specified in Exhibit
A or Exhibit B hereto, as the case may be, with such letters, numbers or other
marks of identification or designation and such legends or endorsements printed,
lithographed or engraved thereon as may be required by the rules of any
securities exchange on which the Corporate SPUS or Treasury SPUS, as the case
may be, are listed, or as may, consistently herewith, be determined by the
officers of the Company executing such Certificates, as evidenced by their
execution of the Certificates.
If temporary Certificates are issued, the Company will cause definitive
Certificates to be prepared without unreasonable delay. After the preparation
of definitive Certificates, the temporary Certificates shall be exchangeable for
definitive Certificates upon surrender of the temporary Certificates at the
Corporate Trust Office, at the expense of the Company and without charge to the
Holder. Upon surrender for cancellation of any one or more temporary
Certificates, the Company shall execute and deliver to the Agent, and the Agent
shall authenticate, execute on behalf of the Holder, and deliver in exchange
therefor, one or more definitive Certificates of like tenor and denominations
and evidencing a like aggregate number of Corporate SPUS or Treasury SPUS, as
the case may be, as the temporary Certificate or Certificates so surrendered.
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Until so exchanged, the temporary Certificates shall in all respects evidence
the same benefits and the same obligations with respect to the Corporate SPUS or
Treasury SPUS, as the case may be, evidenced thereby as definitive Certificates.
SECTION 3.5 Registration; Registration of Transfer and Exchange.
The Agent shall keep at the Corporate Trust Office a register (the
"Corporate SPUS Register") in which, subject to such reasonable regulations as
it may prescribe, the Agent shall provide for the registration of Corporate SPUS
Certificates and of transfers of Corporate SPUS Certificates (the Agent, in such
capacity, the "Corporate SPUS Registrar") and a register (the "Treasury SPUS
Register") in which, subject to such reasonable regulations as it may prescribe,
the Agent shall provide for the registration of the Treasury SPUS Certificates
and of transfers of Treasury SPUS Certificates (the Agent, in such capacity, the
"Treasury SPUS Registrar").
Upon surrender for registration of transfer of any Certificate at the
Corporate Trust Office, the Company shall execute and deliver to the Agent, and
the Agent shall authenticate, execute on behalf of the designated transferee or
transferees, and deliver, in the name of the designated transferee or
transferees, one or more new Certificates of any authorized denominations, like
tenor, and evidencing a like aggregate number of Corporate SPUS or Treasury
SPUS, as the case may be.
At the option of the Holder, Certificates may be exchanged for other
Certificates, of any authorized denominations and evidencing a like number of
Corporate SPUS or Treasury SPUS, as the case may be, upon surrender of the
Certificates to be exchanged at the Corporate Trust Office. Whenever any
Certificates are so surrendered for exchange, the Company shall execute and
deliver to the Agent, and the Agent shall authenticate, execute on behalf of the
Holder, and deliver the Certificates which the Holder making the exchange is
entitled to receive.
All Certificates issued upon any registration of transfer or exchange of a
Certificate shall evidence the ownership of the same aggregate number of
Corporate SPUS or Treasury SPUS, as the case may be, and be entitled to the same
benefits and subject to the same obligations, under this Agreement as the
Corporate SPUS or Treasury SPUS, as the case may be, evidenced by the
Certificate surrendered upon such registration of transfer or exchange.
Every Certificate presented or surrendered for registration of transfer or
for exchange shall (if so required by the Agent) be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Agent duly executed, by the Holder thereof or its attorney duly
authorized in writing.
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No service charge shall be made for any registration of transfer or
exchange of a Certificate, but the Company and the Agent may require payment
from the Holder of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or
exchange of Certificates, other than any exchanges pursuant to Sections 3.10 and
8.5 not involving any transfer.
Notwithstanding the foregoing, the Company shall not be obligated to
execute and deliver to the Agent, and the Agent shall not be obligated to
authenticate, execute on behalf of the Holder and deliver any Certificate in
exchange for any other Certificate presented or surrendered for registration of
transfer or for exchange on or after the Business Day immediately preceding the
earlier of the Purchase Contract Settlement Date or the Termination Date. In
lieu of delivery of a new Certificate, upon satisfaction of the applicable
conditions specified above in this Section and receipt of appropriate
registration or transfer instructions from such Holder, the Agent shall:
(i) if the Purchase Contract Settlement Date has occurred,
deliver the shares of Common Stock issuable in respect of the Purchase
Contracts forming a part of the Securities evidenced by such other
Certificate; or
(ii) if a Termination Event shall have occurred prior to the
Purchase Contract Settlement Date, transfer the Shares or the Treasury
Securities, as the case may be, evidenced thereby, in each case
subject to the applicable conditions and in accordance with the
applicable provisions of Article Five hereof.
SECTION 3.6 Book-Entry Interests.
The Certificates, on original issuance, will be issued in the form of one
or more fully registered Global Certificates, to be delivered to the Depositary
by, or on behalf of, the Company. Such Global Certificate shall initially be
registered on the books and records of the Company in the name of Cede & Co.,
the nominee of the Depositary, and no Beneficial Owner will receive a definitive
Certificate representing such Beneficial Owner's interest in such Global
Certificate, except as provided in Section 3.9. The Agent shall enter into an
agreement with the Depositary if so requested by the Company. Unless and until
definitive, fully registered Certificates have been issued to Beneficial Owners
pursuant to Section 3.9:
(a) the provisions of this Section 3.6 shall be in full force and
effect;
(b) the Company shall be entitled to deal with the Clearing Agency for
all purposes of this Agreement (including making Contract Adjustment Payments,
if any, and receiving approvals, votes or consents hereunder) as the Holder of
the Securities and
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the sole holder of the Global Certificate(s) and shall have no obligation to the
Beneficial Owners;
(c) to the extent that the provisions of this Section 3.6 conflict
with any other provisions of this Agreement, the provisions of this Section 3.6
shall control; and
(d) the rights of the Beneficial Owners shall be exercised only
through the Clearing Agency and shall be limited to those established by law and
agreements between such Beneficial Owners and the Clearing Agency and/or the
Clearing Agency Participants.
SECTION 3.7 Notices to Holders.
Whenever a notice or other communication to the Holders is required to be
given under this Agreement, the Company or the Company's agent shall give such
notices and communications to the Holders and, with respect to any Securities
registered in the name of a Clearing Agency or the nominee of a Clearing Agency,
the Company or the Company's agent shall, except as specified herein, have no
obligations to the Beneficial Owners.
SECTION 3.8 Appointment of Successor Clearing Agency.
If any Clearing Agency elects to discontinue its services as securities
depositary with respect to the Securities, the Company may, in its sole
discretion, appoint a successor Clearing Agency with respect to the Securities.
SECTION 3.9 Definitive Certificates.
If:
(i) a Clearing Agency elects to discontinue its services as
securities depositary with respect to the Securities and a successor
Clearing Agency is not appointed within 90 days after such
discontinuance pursuant to Section 3.8; or
(ii) there shall have occurred and be continuing a default by the
Company in respect of its obligations under one or more Purchase
Contracts,
then upon surrender of the Global Certificates representing the Securities by
the Clearing Agency, accompanied by registration instructions, the Company shall
cause definitive Certificates to be delivered to Beneficial Owners in accordance
with the instructions of the Clearing Agency. The Company shall not be liable
for any delay in delivery of such instructions and may conclusively rely on and
shall be protected in relying on, such instructions.
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SECTION 3.10 Mutilated,Destroyed, Lost and Stolen Certificates.
(a) If any mutilated Certificate is surrendered to the Agent, the
Company shall execute and deliver to the Agent, and the Agent shall
authenticate, execute on behalf of the Holder, and deliver in exchange therefor,
a new Certificate, evidencing the same number of Corporate SPUS or Treasury
SPUS, as the case may be, and bearing a Certificate number not contemporaneously
outstanding.
(b) If there shall be delivered to the Company and the Agent (i)
evidence to their satisfaction of the destruction, loss or theft of any
Certificate, and (ii) such security or indemnity as may be required by them to
hold each of them and any agent of any of them harmless, then, in the absence of
notice to the Company or the Agent that such Certificate has been acquired by a
bona fide purchaser, the Company shall execute and deliver to the Agent, and the
Agent shall authenticate, execute on behalf of the Holder, and deliver to the
Holder, in lieu of any such destroyed, lost or stolen Certificate, a new
Certificate, evidencing the same number of Corporate SPUS or Treasury SPUS, as
the case may be, and bearing a Certificate number not contemporaneously
outstanding.
(c) Notwithstanding the foregoing, the Company shall not be
obligated to execute and deliver to the Agent, and the Agent shall not be
obligated to authenticate, execute on behalf of the Holder, and deliver to the
Holder, a Certificate on or after the Business Day immediately preceding the
earlier of the Purchase Contract Settlement Date or the Termination Date. In
lieu of delivery of a new Certificate, upon satisfaction of the applicable
conditions specified above in this Section and receipt of appropriate
registration or transfer instructions from such Holder, the Agent shall:
(i) if the Purchase Contract Settlement Date has occurred,
deliver the shares of Common Stock issuable in respect of the Purchase
Contracts forming a part of the Securities evidenced by such
Certificate; or
(ii) if a Termination Event shall have occurred prior to the
Purchase Contract Settlement Date, transfer the Shares or the Treasury
Securities, as the case may be, evidenced thereby, in each case
subject to the applicable conditions and in accordance with the
applicable provisions of Article Five hereof.
(d) Upon the issuance of any new Certificate under this Section, the
Company and the Agent may require the payment by the Holder of a sum sufficient
to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Agent)
connected therewith.
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(e) Every new Certificate issued pursuant to this Section in lieu of
any destroyed, lost or stolen Certificate shall constitute an original
additional contractual obligation of the Company and of the Holder in respect of
the Security evidenced thereby, whether or not the destroyed, lost or stolen
Certificate (and the Securities evidenced thereby) shall be at any time
enforceable by anyone, and shall be entitled to all the benefits and be subject
to all the obligations of this Agreement equally and proportionately with any
and all other Certificates delivered hereunder.
(f) The provisions of this Section are exclusive and shall preclude,
to the extent lawful, all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Certificates.
Section 3.11 Persons Deemed Owners.
Prior to due presentment of a Certificate for registration of transfer, the
Company and the Agent, and any agent of the Company or the Agent, may treat the
Person in whose name such Certificate is registered as the owner of the
Corporate SPUS or Treasury SPUS evidenced thereby, for the purpose of receiving
dividend payments on the Shares, receiving payments of Contract Adjustment
Payments, performance of the Purchase Contracts and for all other purposes
whatsoever, whether or not any dividend payments on the Shares, or Contract
Adjustment Payments payable in respect of the Purchase Contracts constituting a
part of the Corporate SPUS or Treasury SPUS evidenced thereby shall be overdue
and notwithstanding any notice to the contrary, and neither the Company nor the
Agent, nor any agent of the Company or the Agent, shall be affected by notice to
the contrary.
Notwithstanding the foregoing, with respect to any Global Certificate,
nothing contained herein shall prevent the Company, the Agent or any agent of
the Company or the Agent, from giving effect to any written certification, proxy
or other authorization furnished by any Clearing Agency (or its nominee), as a
Holder, with respect to such Global Certificate or impair, as between such
Clearing Agency and owners of beneficial interests in such Global Certificate,
the operation of customary practices governing the exercise of rights of such
Clearing Agency (or its nominee) as Holder of such Global Certificate.
Section 3.12 Cancellation.
All Certificates surrendered for delivery of shares of Common Stock on or
after the Purchase Contract Settlement Date, upon the transfer of Shares or
Treasury Securities, as the case may be, after the occurrence of a Termination
Event or pursuant to an Early Settlement, or upon the registration of a transfer
or exchange of a Security, or a Collateral Substitution or the reestablishment
of Corporate SPUS shall, if surrendered to any Person other than the Agent, be
delivered to the Agent and, if not already cancelled, shall be promptly
cancelled by it. The Company may at any time deliver to the Agent for
cancellation any Certificates previously authenticated, executed and delivered
hereunder which the Company may have acquired in any manner whatsoever, and all
Certificates so
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delivered shall, upon Issuer Order, be promptly cancelled by the Agent. No
Certificates shall be authenticated, executed on behalf of the Holder and
delivered in lieu of or in exchange for any Certificates cancelled as provided
in this Section, except as expressly permitted by this Agreement. All cancelled
Certificates held by the Agent shall be destroyed by the Agent unless otherwise
directed by Issuer Order.
If the Company or any Affiliate of the Company shall acquire any
Certificate, such acquisition shall not operate as a cancellation of such
Certificate unless and until such Certificate is delivered to the Agent
cancelled or for cancellation.
SECTION 3.13 Substitution of Securities.
A Holder may separate the Shares from the related Purchase Contracts in
respect of a Corporate SPUS by substituting for such Shares, as applicable,
Treasury Securities in an aggregate principal amount equal to the aggregate
principal amount of such Shares (a "Collateral Substitution"), at any time from
and after the date of this Agreement and on or prior to the seventh Business Day
immediately preceding the Purchase Contract Settlement Date:
(a) depositing with the Securities Intermediary Treasury Securities
or securities entitlements thereto having an aggregate principal amount equal to
the aggregate liquidation preference of the Shares comprising part of such
Corporate SPUS; and
(b) transferring the related Corporate SPUS to the Agent accompanied
by a notice to the Agent, substantially in the form of Exhibit C hereto, (i)
stating that the Holder has transferred the relevant amount of Treasury
Securities to the Securities Intermediary and (ii) requesting that the Agent
instruct the Collateral Agent to release the Shares underlying such Corporate
SPUS, whereupon the Agent shall promptly give such instruction to the Collateral
Agent, substantially in the form of Exhibit A to the Pledge Agreement.
Upon receipt of the Treasury Securities described in clause (a) above and the
instruction described in clause (b) above, in accordance with the terms of the
Pledge Agreement, the Collateral Agent will cause the Securities Intermediary to
release from the Pledge to the Agent, on behalf of the Holder, Shares having a
corresponding aggregate principal amount, free and clear of the Company's
security interest therein, and upon receipt thereof, the Agent shall promptly:
(i) cancel the related Corporate SPUS;
(ii) transfer the Shares to the Holder; and
(iii) authenticate, execute on behalf of such Holder and deliver
a Treasury SPUS Certificate executed by the Company in accordance with
Section 3.3 evidencing the same number of Purchase Contracts as were
evidenced by the cancelled Corporate SPUS.
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Holders who elect to separate the Shares from the related Purchase Contract
and to substitute Treasury Securities for such Shares shall be responsible for
any fees or expenses payable to the Collateral Agent for its services as
Collateral Agent in respect of the substitution, and the Company shall not be
responsible for any such fees or expenses.
Holders may make Collateral Substitutions only in integral multiples of 20
Corporate SPUS if Treasury Securities are being substituted for Shares.
In the event a Holder making a Collateral Substitution pursuant to this
Section 3.13 fails to effect a book-entry transfer of the Corporate SPUS or
fails to deliver Corporate SPUS Certificates to the Agent after depositing
Treasury Securities with the Collateral Agent, the Shares constituting a part of
such Corporate SPUS, any dividends on such Shares shall be held in the name of
the Agent or its nominee in trust for the benefit of such Holder, until such
Corporate SPUS are so transferred or the Corporate SPUS Certificate is so
delivered, as the case may be, or, with respect to a Corporate SPUS Certificate,
such Holder provides evidence satisfactory to the Company and the Agent that
such Corporate SPUS Certificate has been destroyed, lost or stolen, together
with any indemnity that may be required by the Agent and the Company.
Except as described in this Section 3.13, for so long as the Purchase
Contract underlying a Corporate SPUS remains in effect, such Corporate SPUS
shall not be separable into its constituent parts, and the rights and
obligations of the Holder in respect of the Shares and the Purchase Contract
comprising such Corporate SPUS may be acquired, and may be transferred and
exchanged, only as a Corporate SPUS.
Section 3.14 Reestablishment of Corporate SPUS.
A Holder of Treasury SPUS may recreate Corporate SPUS at any time, on or
prior to the seventh Business Day immediately preceding the Purchase Contract
Settlement Date, by:
(a) depositing with the Securities Intermediary Shares or security
entitlements thereto having an aggregate liquidation preference equal to the
aggregate principal amount at maturity of the Treasury Securities comprising
part of the Treasury SPUS; and
(b) transferring the related Treasury SPUS to the Agent accompanied
by a notice to the Agent, substantially in the form of Exhibit C hereto, (i)
stating that the Holder has transferred the relevant amount of Shares to the
Securities Intermediary and (ii) requesting that the Agent instruct the
Collateral Agent to release the Treasury Securities underlying such Treasury
SPUS, whereupon the Agent shall promptly give such instruction to the Collateral
Agent, substantially in the form of Exhibit C to the Pledge Agreement.
Upon receipt of the Shares described in clause (a) above and the instruction
described in clause (b) above, in accordance with the terms of the Pledge
Agreement, the Collateral
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Agent will cause the Securities Intermediary to effect the release of the
Treasury Securities having a corresponding aggregate principal amount at
maturity from the Pledge, to the Agent free and clear of the Company's security
interest therein, and upon receipt thereof, the Agent shall promptly:
(i) cancel the related Treasury SPUS;
(ii) transfer the Treasury Securities to the Holder; and
(iii) authenticate, execute on behalf of such Holder and deliver
a Corporate SPUS Certificate executed by the Company in accordance
with Section 3.3 evidencing the same number of Purchase Contracts as
were evidenced by the cancelled Treasury SPUS.
Holders who elect to recreate Corporate SPUS shall be responsible for any
fees or expenses payable to the Collateral Agent for its services as Collateral
Agent in respect of the substitution, and the Company shall not be responsible
for any such fees or expenses.
Holders of Treasury SPUS may reestablish Corporate SPUS in integral
multiples of 20 Treasury SPUS for 20 Corporate SPUS.
Except as provided in this Section 3.14, for so long as the Purchase
Contract underlying a Treasury SPUS remains in effect, such Treasury SPUS Unit
shall not be separable into its constituent parts and the rights and obligations
of the Holder of such Treasury SPUS in respect of the 1/20 of a Treasury
Security and the Purchase Contract comprising such Treasury SPUS may be
acquired, and may be transferred and exchanged, only as a Treasury SPUS.
Section 3.15 Transfer of Collateral upon Occurrence of Termination Event.
Upon the occurrence of a Termination Event and the transfer to the Agent of
the Shares or the Treasury Securities underlying the Corporate SPUS and the
Treasury SPUS, as the case may be, pursuant to the terms of the Pledge
Agreement, the Agent shall request transfer instructions with respect to such
Shares from each Holder by written request, substantially in the form of Exhibit
D hereto, mailed to such Holder at its address as it appears in the Corporate
SPUS Register or the Treasury SPUS Register, as the case may be.
Upon book-entry transfer of the Corporate SPUS or the Treasury SPUS or
delivery of a Corporate SPUS Certificate or Treasury SPUS Certificate to the
Agent with such transfer instructions, the Agent shall transfer the Shares
underlying such Corporate SPUS or Treasury SPUS, as the case may be, to such
Holder by book-entry transfer, or other appropriate procedures, in accordance
with such instructions. In the event a Holder of Corporate SPUS or Treasury SPUS
fails to effect such transfer or delivery, the Shares or Treasury Securities, as
the case may be, underlying such Corporate SPUS or Treasury SPUS, as the case
may be, and any dividends or interest thereon, shall be held in the
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name of the Agent or its nominee in trust for the benefit of such Holder, until
the earlier of:
(a) such Corporate SPUS or Treasury SPUS are transferred or the
Corporate SPUS Certificate or Treasury SPUS Certificate is surrendered or such
Holder provides satisfactory evidence that such Corporate SPUS Certificate or
Treasury SPUS Certificate has been destroyed, lost or stolen, together with any
indemnity that may be required by the Agent and the Company; and
(b) the expiration of the time period specified in the abandoned
property laws of the relevant State.
Section 3.16 No Consent to Assumption.
Each Holder of a Security, by acceptance thereof, shall be deemed expressly
to have withheld any consent to the assumption under Section 365 of the
Bankruptcy Code or otherwise, of the Purchase Contract by the Company or its
trustee, receiver, liquidator or a person or entity performing similar functions
in the event that the Company becomes the debtor under the Bankruptcy Code or
subject to other similar state or federal law providing for reorganization or
liquidation.
ARTICLE IV
THE SHARES
Section 4.1 Payment of Dividends; Rights to Dividends Preserved; Dividend Rate
Reset.
Dividends on any Share which are paid on any Payment Date shall, subject to
receipt thereof by the Agent from the Collateral Agent as provided by the terms
of the Pledge Agreement, be paid to the Person in whose name the Corporate SPUS
Certificate (or one or more Predecessor Corporate SPUS Certificates) of which
such Share is a part is registered at the close of business on the Record Date
for such Payment Date.
Each Corporate SPUS Certificate evidencing Shares delivered under this
Agreement upon registration of transfer of or in exchange for or in lieu of any
other Corporate SPUS Certificate shall carry the rights to accrued and unpaid
dividends, and to accrue dividends, which were carried by the Shares underlying
such other Corporate SPUS Certificate.
In the case of any Corporate SPUS with respect to which Cash Settlement of
the underlying Purchase Contract is effected on or prior to the fifth Business
Day immediately preceding the Purchase Contract Settlement Date pursuant to
prior notice, or with respect to which Early Settlement of the underlying
Purchase Contract is effected on an Early Settlement Date, or with respect to
which a Collateral Substitution is effected, in each case on a date that is
after any Record Date and on or prior to the next succeeding
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Payment Date, dividends on the Shares underlying such Corporate SPUS otherwise
payable on such Payment Date shall be payable on such Payment Date
notwithstanding such Cash Settlement or Early Settlement or Collateral
Substitution, and such dividends shall, subject to receipt thereof by the Agent,
be payable to the Person in whose name the Corporate SPUS Certificate (or one or
more Predecessor Corporate SPUS Certificates) was registered at the close of
business on the Record Date.
Except as otherwise expressly provided in the immediately preceding
sentence, in the case of any Corporate SPUS with respect to which Cash
Settlement or Early Settlement of the underlying Purchase Contract is effected
on or prior to the fifth Business Day immediately preceding the Purchase
Contract Settlement Date or an Early Settlement Date, as the case may be, or
with respect to which a Collateral Substitution has been effected, dividends on
the related Shares that would otherwise be payable after the Purchase Contract
Settlement Date or Early Settlement Date shall not be payable hereunder to the
Holder of such Corporate SPUS; provided, however, that to the extent that such
Holder continues to hold the separated Shares that formerly comprised a part of
such Holder's Corporate SPUS, such Holder shall be entitled to receive the
dividends on such separated Shares pursuant to their terms.
The applicable dividend rate borne by the Shares on and after the Purchase
Contract Settlement Date shall be established pursuant to the Remarketing on the
third Business Day immediately preceding the Purchase Contract Settlement Date
to equal to the Reset Rate (such Reset Rate to be in effect on and after the
Purchase Contract Settlement Date).
Section 4.2 Notice and Voting.
Under the terms of the Pledge Agreement, the Agent will be entitled to
exercise the voting and any other consensual rights pertaining to the Pledged
Shares, but only to the extent instructed in writing by the Holders as described
below. Upon receipt of notice of any meeting at which holders of Shares are
entitled to vote or upon any solicitation of consents, waivers or proxies of
holders of Shares, the Agent shall, as soon as practicable thereafter, mail to
the Holders of Corporate SPUS a notice:
(a) containing such information as is contained in the notice or
solicitation;
(b) stating that each Holder on the record date set by the Agent
therefor (which, to the extent possible, shall be the same date as the record
date for determining the holders of Shares entitled to vote) shall be entitled
to instruct the Agent as to the exercise of the voting rights pertaining to such
Shares underlying their Corporate SPUS; and
(c) stating the manner in which such instructions may be given.
Upon the written request of the Holders of Corporate SPUS on such record date
received by the Agent at least six days prior to such meeting, the Agent shall
endeavor insofar as
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practicable to vote or cause to be voted, in accordance with the instructions
specified in such requests, the maximum liquidation preference of Shares, as to
which any particular voting instructions are received. In the absence of
specific instructions from the Holder of a Corporate SPUS, the Agent shall
abstain from voting the Shares underlying such Corporate SPUS. The Company
hereby agrees, if applicable, to solicit Holders of Corporate SPUS to timely
instruct the Agent in order to enable the Agent to vote such Shares.
ARTICLE V
THE PURCHASE CONTRACTS
Section 5.1 Purchase of Shares of Common Stock.
Each Purchase Contract shall, unless an Early Settlement has occurred in
accordance with Section 5.9 hereof, obligate the Holder of the related Security
to purchase, and the Company to sell, on the Purchase Contract Settlement Date
at a price equal to the Stated Amount (the "Purchase Price"), a number of newly
issued shares of Common Stock equal to the Settlement Rate unless, on or prior
to the Purchase Contract Settlement Date, there shall have occurred a
Termination Event with respect to the Security of which such Purchase Contract
is a part. The "Settlement Rate" is equal to:
(a) if the Applicable Market Value (as defined below) is equal to or
greater than $___________ (the "Threshold Appreciation Price"), _____ shares of
Common Stock per Purchase Contract;
(b) if the Applicable Market Value is less than the Threshold
Appreciation Price but greater than $__________ (the "Reference Price"), the
number of shares of Common Stock equal to the Stated Amount divided by the
Applicable Market Value; and
(c) if the Applicable Market Value is less than or equal to the
$___________, ___________ shares of Common Stock per Purchase Contract, in each
case subject to adjustment as provided in Section 5.6 (and in each case rounded
upward or downward to the nearest 1/10,000th of a share). As provided in Section
5.10, no fractional shares of Common Stock will be issued upon settlement of
Purchase Contracts.
The "Applicable Market Value" means the average of the Closing Price per
share of Common Stock on each of the 20 Trading Days ending on the third Trading
Day immediately preceding the Purchase Contract Settlement Date.
The "Closing Price" per share of Common Stock on any date of determination
means:
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(i) The closing sale price (or, if no closing price is
reported, the last reported sale price) per share on the New York
Stock Exchange, Inc. (the "NYSE") on such date;
(ii) if the Common Stock is not listed for trading on the NYSE
on any such date, the closing sale price per share as reported in the
composite transactions for the principal United States securities
exchange on which the Common Stock is so listed;
(iii) if the Common Stock is not so listed on a United States
national or regional securities exchange, the closing sale price per
share as reported by the NYSE;
(iv) if the Common Stock is not so reported, the last quoted bid
price for the Common Stock in the over-the-counter market as reported
by the National Quotation Bureau or similar organization; or
(v) if such bid price is not available, the average of the mid-
point of the last bid and ask prices of the Common Stock on such date
from at least three nationally recognized independent investment
banking firms retained for this purpose by the Company.
A "Trading Day" means a day on which the Common Stock (1) is not suspended
from trading on any national or regional securities exchange or association or
over-the-counter market at the close of business and (2) has traded at least
once on the national or regional securities exchange or association or over-the-
counter market that is the primary market for the trading of the Common Stock.
Each Holder of a Corporate SPUS or a Treasury SPUS, by its acceptance
thereof: irrevocably authorizes the Agent to enter into and perform the related
Purchase Contract on its behalf as its attorney-in-fact (including the execution
of Certificates on behalf of such Holder); agrees to be bound by the terms and
provisions thereof; covenants and agrees to perform its obligations under such
Purchase Contracts; consents to the provisions hereof; irrevocably authorizes
the Agent to enter into and perform this Agreement and the Pledge Agreement on
its behalf as its attorney-in-fact; and consents to, and agrees to be bound by,
the Pledge of the Shares or the Treasury Securities pursuant to the Pledge
Agreement, provided that upon a Termination Event, the rights of the Holder of
--------
such Security under the Purchase Contract may be enforced without regard to any
other rights or obligations. Each Holder of a Corporate SPUS or a Treasury SPUS,
by its acceptance thereof, further covenants and agrees, that to the extent and
in the manner provided in Section 5.4 and the Pledge Agreement, but subject to
the terms thereof, Proceeds from the remarketing of the Shares or the Proceeds
of the Treasury Securities on the Purchase Contract Settlement Date, shall be
paid by the Collateral Agent to the Company in satisfaction of such Holder's
obligations under such Purchase Contract and such Holder shall acquire no right,
title or interest in such payments.
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Upon registration of transfer of a Certificate, the transferee shall be
bound (without the necessity of any other action on the part of such transferee)
by the terms of this Agreement, the Purchase Contracts underlying such
Certificate, the Declaration and the Pledge Agreement and the transferor shall
be released from the obligations under this Agreement, the Purchase Contracts
underlying the Certificate so transferred and the Pledge Agreement. The Company
covenants and agrees, and each Holder of a Certificate, by its acceptance
thereof, likewise covenants and agrees, to be bound by the provisions of this
paragraph.
Section 5.2 Contract Adjustment Payments.
The Company shall pay, on each Payment Date, the Contract Adjustment
Payments payable in respect of each Purchase Contract to the Person in whose
name a Certificate (or one or more Predecessor Certificates) is registered at
the close of business on the Record Date next preceding such Payment Date. The
Contract Adjustment Payments will be payable at the office of the Agent in New
York City maintained for that purpose or, at the option of the Company, by check
mailed to the address of the Person entitled thereto at such Person's address as
it appears on the Corporate SPUS Register or Treasury SPUS Register.
Upon the occurrence of a Termination Event, the Company's obligation to pay
Contract Adjustment Payments (including any accrued Contract Adjustment
Payments) shall cease.
Each Certificate delivered under this Agreement upon registration of
transfer of or in exchange for or in lieu of (including as a result of a
Collateral Substitution or the reestablishment of Corporate SPUS) any other
Certificate shall carry the rights to Contract Adjustment Payments accrued and
unpaid, and the right to accrue Contract Adjustment Payments, which were carried
by the Purchase Contracts underlying such other Certificates.
Subject to Section 5.9, in the case of any Security with respect to which
Early Settlement of the underlying Purchase Contract is effected on an Early
Settlement Date that is after any Record Date and on or prior to the next
succeeding Payment Date, Contract Adjustment Payments otherwise payable on such
Payment Date shall be payable on such Payment Date notwithstanding such Early
Settlement, and such Contract Adjustment Payments shall be paid to the Person in
whose name the Certificate evidencing such Security (or one or more Predecessor
Certificates) is registered at the close of business on such Record Date. Except
as otherwise expressly provided in the immediately preceding sentence, in the
case of any Security with respect to which Early Settlement of the underlying
Purchase Contract is effected on an Early Settlement Date, Contract Adjustment
Payments, if any, that would otherwise be payable after the Early Settlement
Date with respect to such Purchase Contract shall not be payable.
Section 5.3 [Intentionally Omitted].
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Section 5.4 Payment of Purchase Price.
(a) (i) Unless a Holder of a Corporate SPUS settles the
underlying Purchase Contract Contract through the early delivery
of cash to the Purchase Contract Agent in the manner described in
Section 5.9, each Holder of a Corporate SPUS who intends to pay
in cash to satisfy such Holder's obligations under the Purchase
Contract shall notify the Agent by use of a notice in
substantially the form of Exhibit E hereto of its intention to
pay in cash (the "Cash Settlement") the Purchase Price for the
shares of Common Stock to be purchased pursuant to a Purchase
Contract. Such notice shall be given prior to 5:00 p.m. (New York
City time) on the seventh Business Day immediately preceding the
Purchase Contract Settlement Date. Prior to 11:00 a.m. (New York
City time) on the next succeeding Business Day, the Agent shall
notify the Collateral Agent of the receipt of such notices from
Holders intending to make a Cash Settlement.
(ii) A Holder of a Corporate SPUS who has so notified the
Agent of its intention to effect a Cash Settlement in accordance
with paragraph (a)(i) above shall pay the Purchase Price to the
Securities Intermediary for deposit in the Collateral Account
prior to 11:00 a.m. (New York City time) on the fifth Business
Day immediately preceding the Purchase Contract Settlement Date
in lawful money of the United States by certified or cashiers'
check or wire transfer, in each case in immediately available
funds payable to or upon the order of the Securities
Intermediary. Any cash received by the Collateral Agent shall be
invested promptly by the Securities Intermediary in Permitted
Investments and paid to the Company on the Purchase Contract
Settlement Date in settlement of the Purchase Contract in
accordance with the terms of this Agreement and the Pledge
Agreement. Any funds received by the Securities Intermediary in
respect of the investment earnings from the investment in such
Permitted Investments, shall be distributed to the Agent when
received for payment to the Holder of the related Corporate SPUS
on the Purchase Contract Settlement Date.
(iii) If a Holder of a Corporate SPUS fails to notify the
Agent of its intention to make a Cash Settlement in accordance
with paragraph (a)(i) above, or does notify the Agent as provided
in paragraph (a)(i) above of its intention to pay the Purchase
Price in cash, but fails to make such payment as required by
paragraph (a)(ii) above, such Holder shall be deemed to have
consented to the disposition of the Pledged Shares pursuant to
the remarketing as described in paragraph (b) below.
(iv) Not later than 15 calendar days nor more than 30
calendar days prior to the third Business Day immediately
preceding the Purchase Contract Settlement Date, the Company
shall request DTC (or any
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successor Clearing Agency), to notify the Beneficial Owners or
Clearing Agency Participants holding Corporate SPUS or Treasury
SPUS of the procedures to be followed by Holders of Corporate
SPUS who intend to effect the settlement of their obligations
under the Purchase Contracts underlying such Corporate SPUS with
separate cash on or prior to the fifth Business Day prior to the
Purchase Contract Settlement Date.
(v) Promptly after 11:00 a.m., New York City time, on the
fifth Business Day preceding the Purchase Contract Settlement
Date, the Agent, based on notices received by the Agent pursuant
to Section 5.4(a)(i) hereof and notice from the Securities
Intermediary regardin cash received by it prior to such time,
shall notify the Collateral Agent of the liquidation preference
of Shares to be tendered for purchase in the Remarketing in a
notice substantially in the form of Exhibit F hereto.
(b) in order to dispose of the Shares, Corporate SPUS Holders
who have not notified the Agent of their intention to effect a Cash Settlement
as provided in paragraph (a)(i) above, or who have so notified the Agent but
fail to make such payment as required by paragraph (a)(ii) above, the Company
shall engage ___________________ (the "Remarketing Agent") pursuant to the
Remarketing Agreement to sell such Shares. In order to facilitate the
remarketing, the Agent, based on the notices specified in Section 5.4(a)(v),
shall notify the Remarketing Agent, promptly after 11:00 a.m. (New York City
time) on the fifth Business Day immediately preceding the Purchase Contract
Settlement Date, of the aggregate principal amount of Shares that are a
component of Corporate SPUS to be remarketed. Concurrently, the Collateral
Agent, pursuant to the terms of the Pledge Agreement, shall cause such Shares to
be presented to the Remarketing Agent for Remarketing. Upon receipt of such
notice from the Agent and such Shares, the Remarketing Agent shall, on the third
Business Day immediately preceding the Purchase Contract Settlement Date, use
commercially reasonable efforts to remarket such Shares on such date at a price
of [100.50%] of the aggregate principal amount at maturity of such Shares. The
proceeds equal to 100% of the aggregate principal amount at maturity of the
remarketed Shares shall automatically be applied by the Collateral Agent, in
accordance with the Pledge Agreement, to satisfy in full such Corporate SPUS
Holders' obligations to pay the Purchase Price for the shares of Common Stock
under the related Purchase Contracts on the Purchase Contract Settlement Date.
The proceeds equal to [.50%] of the aggregate principal amount at maturity of
the remarketed Shares shall automatically be applied, in accordance with the
Pledge Agreement, to pay the remarketing fee of the Remarketing Agent. Corporate
SPUS Holders whose Shares are so remarketed shall not be responsible for the
payment of any remarketing fee in connection therewith. If, in spite of using
their reasonable efforts, the Remarketing Agent cannot remarket the related
Shares of such Holders of Corporate SPUS at a price of [100.50%] of the
aggregate principal amount at maturity of such Shares, the remarketing shall be
deemed to have failed (a "Failed Remarketing") and in accordance with the terms
of the Pledge Agreement, the Collateral Agent, for the benefit of the Company,
shall be entitled to exercise its rights as a secured party with respect to such
Shares, including those actions specified in paragraph (c) below; provided, that
if upon a Failed Remarketing the
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Collateral Agent exercises such rights for the benefit of the Company with
respect to such Shares, any accrued and unpaid dividends on such Shares shall
become payable by the Company to the Agent for payment to the Beneficial Owner
of the Corporate SPUS to which such Shares relate. The Company shall cause a
notice of such Failed Remarketing to be published no later than the Business Day
immediately preceding the Purchase Contract Settlement Date in a daily newspaper
in the English language of general circulation in New York City, which is
expected to be The Wall Street Journal.
(c) With respect to any Shares which are subject to a Failed
Remarketing, the Collateral Agent for the benefit of the Company reserves all of
its rights as a secured party with respect thereto and, subject to applicable
law and paragraph (g) below, may, among other things, (i) retain the Shares in
full satisfaction of the Holders' obligations under the Purchase Contracts or
(ii) sell the Shares in one or more public or private sales.
(d) (i) Unless a Holder of a Treasury SPUS settles the underlying
Purchase Contract through the early delivery of cash to the Agent in
the manner described in Section 5.9, each Holder of a Treasury SPUS
who intends to pay in cash shall notify the Agent by use of a notice
in substantially the form of Exhibit E hereto of its intention to pay
in cash the Purchase Price for the shares of Common Stock to be
purchased pursuant to the related Purchase Contract. Such notice shall
be given on or prior to 5:00 p.m. (New York City time) on the second
Business Day immediately preceding the Purchase Contract Settlement
Date.
(ii) A Holder of a Treasury SPUS who has so notified the Agent
of its intention to make a Cash Settlement in accordance with
paragraph (d)(i) above shall pay the Purchase Price to the Securities
Intermediary for deposit in the Collateral Account prior to 11:00 a.m.
(New York City time) on the Business Day immediately preceding the
Purchase Contract Settlement Date in lawful money of the United States
by certified or cashiers' check or wire transfer, in each case in
immediately available funds payable to or upon the order of the
Securities Intermediary. Any cash received by the Collateral Agent
shall be invested promptly by the Securities Intermediary in Permitted
Investments and paid to the Company on the Purchase Contract
Settlement Date in settlement of the Purchase Contract in accordance
with the terms of this Agreement and the Pledge Agreement. Any funds
received by the Securities Intermediary in respect of the investment
earnings from the investment in such Permitted Investments shall be
distributed to the Agent when received for payment to the Holder.
(iii) If a Holder of a Treasury SPUS fails to notify the Agent of
its intention to make a Cash Settlement in accordance with paragraph
(d)(i) above, or does notify the Agent as provided in paragraph (d)(i)
above of its intention to pay the Purchase Price in cash, but fails to
make
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such payment as required by paragraph (d)(ii) above, then upon the
maturity of the Pledged Treasury Securities held by the Securities
Intermediary on the Business Day immediately preceding the Purchase
Contract Settlement Date, the principal amount of the Treasury
Securities received by the Securities Intermediary shall be invested
promptly in Permitted Investments. On the Purchase Contract Settlement
Date, an amount equal to the Purchase Price shall be remitted to the
Company as payment thereof without receiving any instructions from the
Holder. In the event the sum of the proceeds from the related Pledged
Treasury Securities and the investment earnings earned from such
investments is in excess of the aggregate Purchase Price of the
Purchase Contracts being settled thereby, the Collateral Agent shall
cause the Securities Intermediary to distribute such excess to the
Agent for the benefit of the Holder of the related Treasury SPUS when
received.
(e) Any distribution to Holders of excess funds and interest
described above shall be payable at the office of the Agent in New York City
maintained for that purpose or, at the option of the Holder, by check mailed to
the address of the Person entitled thereto at such address as it appears on the
Register.
(f) Upon Cash Settlement of any Purchase Contract:
(i) the Collateral Agent will in accordance with the terms of
the Pledge Agreement cause the Pledged Shares or the Pledged Treasury
Securities, as the case may be, underlying the relevant Security to be
released from the Pledge, free and clear of any security interest of
the Company, and transferred to the Agent for delivery to the Holder
thereof or its designee as soon as practicable; and
(ii) subject to the receipt thereof, the Agent shall, by book-
entry transfer or other appropriate procedures, in accordance with
written instructions provided by the Holder thereof, transfer such
Shares or such Treasury Securities, as the case may be (or, if no such
instructions are given to the Agent by the Holder, the Agent shall
hold such Shares or such Treasury Securities, as the case may be, and
any dividends or interest thereon, as the case may be, in the name of
the Agent or its nominee in trust for the benefit of such Holder until
the expiration of the time period specified in the abandoned property
laws of the relevant state).
(g) The obligations of the Holders to pay the Purchase Price are non-
recourse obligations and, except to the extent satisfied by Early Settlement or
Cash Settlement, are payable solely out of the proceeds of any Collateral
pledged to secure the obligations of the Holders and in no event will Holders be
liable for any deficiency between the proceeds of the disposition of Collateral
and the Purchase Price.
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Section 5.5 Issuance of Shares of Common Stock.
Unless a Termination Event or an Early Settlement shall have occurred,
subject to Section 5.6(b), on the Purchase Contract Settlement Date upon receipt
of the aggregate Purchase Price payable on all Outstanding Securities, Contract
the Company shall issue and deposit with the Agent, for the benefit of the
Holders of the Outstanding Securities, one or more certificates representing the
newly issued shares of Common Stock registered in the name of the Agent (or its
nominee) as custodian for the Holders (such certificates for shares of Common
Stock, together with any dividends or distributions for which a record date and
payment date for such dividend or distribution has occurred after the Purchase
Contract Settlement Date, being hereinafter referred to as the "Purchase
Contract Settlement Fund") to which the Holders are entitled hereunder.
Subject to the foregoing, upon surrender of a Certificate to the Agent on
or after the Purchase Contract Settlement Date, together with settlement
instructions thereon duly completed and executed, the Holder of such Certificate
shall be entitled to receive forthwith in exchange therefor a certificate
representing that number of whole shares of Common Stock which such Holder is
entitled to receive pursuant to the provisions of this Article Five (after
taking into account all Securities then held by such Holder), together with cash
in lieu of fractional shares as provided in Section 5.10 and any dividends or
distributions with respect to such Shares constituting part of the Purchase
Contract Settlement Fund, but without any interest thereon, and the Certificate
so surrendered shall forthwith be cancelled. Such shares shall be registered in
the name of the Holder or the Holder's designee as specified in the settlement
instructions provided by the Holder to the Agent. If any shares of Common Stock
issued in respect of a Purchase Contract are to be registered to a Person other
than the Person in whose name the Certificate evidencing such Purchase Contract
is registered, no such registration shall be made unless the Person requesting
such registration has paid any transfer and other taxes required by reason of
such registration in a name other than that of the registered Holder of the
Certificate evidencing such Purchase Contract or has established to the
satisfaction of the Company that such tax either has been paid or is not
payable.
Section 5.6 Adjustment of Settlement Rate.
(a) Adjustments for Dividends, Distributions, Stock Splits, Etc.
(i) In case the Company shall pay or make a dividend or other
distribution on Common Stock in Common Stock, the Settlement Rate in
effect at the opening of business on the day following the date fixed
for the determination of shareholders entitled to receive such
dividend or other distribution shall be increased by dividing such
Settlement Rate by a fraction of which:
(1) the numerator shall be the number of shares of Common
Stock outstanding at the close of business on the date fixed for
such determination; and
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(2) the denominator shall be the sum of such number of
shares and the total number of shares constituting such dividend
or other distribution,
such increase to become effective immediately after the opening of
business on the day following the date fixed for such determination.
For the purposes of this paragraph (1), the number of shares of Common
Stock at any time outstanding shall include any shares issuable in
respect of any scrip certificates issued in lieu of fractions of
shares of Common Stock. The Company will not pay any dividend or make
any distribution on shares of Common Stock held in the treasury of the
Company.
(ii) In case the Company shall issue rights, warrants or options
to all holders of its Common Stock (not being available on an
equivalent basis to Holders of the Securities upon settlement of the
Purchase Contracts underlying such Securities) entitling them, for a
period expiring within 45 days after the record date for the
determination of shareholders entitled to receive such rights,
warrants or options, to subscribe for or purchase shares of Common
Stock at a price per share less than the Current Market Price per
share of Common Stock on the date fixed for the determination of
shareholders entitled to receive such rights, warrants or options
(other than pursuant to a dividend reinvestment plan), the Settlement
Rate in effect at the opening of business on the day following the
date fixed for such determination shall be increased by dividing such
Settlement Rate by a fraction of which:
(1) the numerator shall be the number of shares of Common
Stock outstanding at the close of business on the date fixed for
such determination plus the number of shares of Common Stock
which the aggregate of the offering price of the total number of
shares of Common Stock so offered for subscription or purchase
would purchase at such Current Market Price; and
(2) the denominator shall be the number of shares of Common
Stock outstanding at the close of business on the date fixed for
such determination plus the number of shares of Common Stock so
offered for subscription or purchase,
such increase to become effective immediately after the opening of
business on the day following the date fixed for such determination.
For the purposes of this paragraph (2), the number of shares of Common
Stock at any time outstanding shall include any shares issuable in
respect of any scrip certificates issued in lieu of fractions of
shares of Common Stock.
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(iii) In case outstanding shares of Common Stock shall be
subdivided or split into a greater number of shares of Common Stock,
the Settlement Rate in effect at the opening of business on the day
following the day upon which such subdivision or split becomes
effective shall be proportionately increased, and, conversely, in case
outstanding shares of Common Stock shall each be combined into a
smaller number of shares of Common Stock, the Settlement Rate in
effect at the opening of business on the day following the day upon
which such combination becomes effective shall be proportionately
reduced, such increase or reduction, as the case may be, to become
effective immediately after the opening of business on the day
following the day upon which such subdivision, split or combination
becomes effective.
(iv) In case the Company shall, by dividend or otherwise,
distribute to all holders of its Common Stock evidences of its
indebtedness or assets (including securities, but excluding any
rights, warrants or options referred to in paragraph (2) of this
Section 5.6(a), any dividend or distribution paid exclusively in cash
and any dividend or distribution referred to in paragraph (1) of this
Section 5.6(a)), the Settlement Rate shall be adjusted so that the
same shall equal the rate determined by dividing the Settlement Rate
in effect immediately prior to the close of business on the date fixed
for the determination of shareholders entitled to receive such
distribution by a fraction of which:
(1) the numerator shall be the Current Market Price per
share of Common Stock on the date fixed for such determination
less the then fair market value (as determined by the Board of
Directors, whose determination shall be conclusive and described
in a Board Resolution) of the portion of the assets or evidences
of indebtedness so distributed applicable to one share of Common
Stock; and
(2) the denominator shall be such Current Market Price per
share of Common Stock,
such adjustment to become effective immediately prior to the opening
of business on the day following the date fixed for the determination
of shareholders entitled to receive such distribution. In any case in
which this paragraph (4) is applicable, paragraph (2) of this Section
5.6(a) shall not be applicable.
(v) In case the Company shall, by dividend or otherwise,
distribute to all holders of its Common Stock (I) cash (excluding any
cash that is distributed in a Reorganization Event to which Section
5.6(b) applies or as part of a distribution referred to in paragraph
(iv) of this Section) in an aggregate amount that, combined together
with the aggregate amount of any other distributions to all holders of
its Common
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Stock made exclusively in cash (other than in connection with a
Reorganization Event) within the 12 months preceding the date of
payment of such distribution and in respect of which no adjustment
pursuant to this paragraph (v) or paragraph (vi) of this Section has
been made and (II) the aggregate of any cash plus the fair market
value (as determined by the Board of Directors, whose determination
shall be conclusive and described in a Board Resolution) of
consideration payable in respect of any tender or exchange offer by
the Company or any of its subsidiaries for all or any portion of the
Common Stock concluded within the 12 months preceding the date of
payment of the distribution described in Clause (I) above and in
respect of which no adjustment pursuant to this paragraph (5) or
paragraph (4) or paragraph (6) of this Section has been made, exceeds
[15%] of the product of the Current Market Price per share of the
Common Stock on the date for the determination of holders of shares of
Common Stock entitled to receive such distribution times the number of
shares of Common Stock outstanding on such date, then, and in each
such case, immediately after the close of business on such date for
determination, the Settlement Rate shall be increased so that the same
shall equal the rate determined by dividing the Settlement Rate in
effect immediately prior to the close of business on the date fixed
for determination of the shareholders entitled to receive such
distribution by a fraction (i) the numerator of which shall be equal
to the Current Market Price per share of the Common Stock on the date
fixed for such determination less an amount equal to the quotient of
(x) the combined amount distributed or payable in the transactions
described in clauses (I) and (II) above divided by (y) the number of
shares of Common Stock outstanding on such date for determination and
(ii) the denominator of which shall be equal to the Current Market
Price per share of the Common Stock on such date for determination.
(vi) In case a tender or exchange offer made by the Company or
any subsidiary of the Company for all or any portion of the Common
Stock shall expire and such tender or exchange offer (as amended upon
the expiration thereof) shall require the payment to shareholders
(based on the acceptance (up to any maximum specified in the terms of
the tender or exchange offer) of Purchased Shares) of (I) an aggregate
consideration having a fair market value (as determined by the Board
of Directors, whose determination shall be conclusive and described in
a Board Resolution) that combined together with the aggregate of the
cash plus the fair market value (as determined by the Board of
Directors, whose determination shall be conclusive and described in a
Board Resolution), as of the expiration of such tender or exchange
offer, of consideration payable in respect of any other tender or
exchange offer, by the Company or any subsidiary of the Company for
all or any portion of the Common Stock expiring within the 12 months
preceding the expiration of such tender or exchange offer and in
respect of which no adjustment pursuant to
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paragraph (5) of this Section or this paragraph (6) has been made and
(II) the aggregate amount of any distributions to all holders of the
Company's Common Stock made exclusively in cash within the 12 months
preceding the expiration of such tender or exchange offer and in
respect of which no adjustment pursuant to paragraph (5) of this
Section or this paragraph (6) has been made, exceeds [15%] of the
product of the Current Market Price per share of the Common Stock as
of the last time (the "Expiration Time") tenders could have been made
pursuant to such tender or exchange offer (as it may be amended) times
the number of shares of Common Stock outstanding (including any
tendered shares) on the Expiration Time, then, and in each such case,
immediately prior to the opening of business on the day after the date
of the Expiration Time, the Settlement Rate shall be adjusted so that
the same shall equal the rate determined by dividing the Settlement
Rate immediately prior to the close of business on the date of the
Expiration Time by a fraction (i) the numerator of which shall be
equal to (A) the product of (1) the Current Market Price per share of
the Common Stock on the date of the Expiration Time and (2) the number
of shares of Common Stock outstanding (including any tendered shares)
on the Expiration Time less (B) the amount of cash plus the fair
market value (determined as aforesaid) of the aggregate consideration
payable to shareholders based on the transactions described in clauses
(I) and (II) above (assuming in the case of clause (I) the acceptance,
up to any maximum specified in the terms of the tender or exchange
offer, of Purchased Shares), and (ii) the denominator of which shall
be equal to the product of (A) the Current Market Price per share of
the Common Stock as of the Expiration Time and (B) the number of
shares of Common Stock outstanding (including any tendered shares) as
of the Expiration Time less the number of all shares validly tendered
and not withdrawn as of the Expiration Time (the shares deemed so
accepted, up to any such maximum, being referred to as the "Purchased
Shares").
(vii) The reclassification of Common Stock into securities
including securities other than Common Stock (other than any
reclassification upon a Reorganization Event to which Section 5.6(b)
applies) shall be deemed to involve:
(1) a distribution of such securities other than Common
Stock to all holders of Common Stock (and the effective date of
such reclassification shall be deemed to be "the date fixed for
the determination of shareholders entitled to receive such
distribution" and the "date fixed for such determination" within
the meaning of paragraph (4) of this Section); and
(2) a subdivision, split or combination, as the case may
be, of the number of shares of Common Stock outstanding
immediately prior to such reclassification into the number of
shares of Common Stock outstanding immediately thereafter (and
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the effective date of such reclassification shall be deemed to be
"the day upon which such subdivision or split becomes effective"
or "the day upon which such combination becomes effective", as
the case may be, and "the day upon which such subdivision, split
or combination becomes effective" within the meaning of paragraph
(3) of this Section).
(viii) The "Current Market Price" per share of Common Stock on
any day means the average of the daily Closing Prices for the five
consecutive Trading Days selected by the Company commencing not more
than 30 Trading Days before, and ending not later than, the earlier of
the day in question and the day before the "ex date" with respect to
the issuance or distribution requiring such computation. For purposes
of this paragraph, the term "ex date", when used with respect to any
issuance or distribution, shall mean the first date on which Common
Stock trades regular way on such exchange or in such market without
the right to receive such issuance or distribution.
(ix) All adjustments to the Settlement Rate shall be calculated
to the nearest 1/10,000th of a share of Common Stock (or if there is
not a nearest 1/10,000th of a share, to the next lower 1/10,000th of a
share). No adjustment in the Settlement Rate shall be required unless
such adjustment would require an increase or decrease of at least one
percent thereof; provided, however, that any adjustments which by
reason of this subparagraph are not required to be made shall be
carried forward and taken into account in any subsequent adjustment.
If an adjustment is made to the Settlement Rate pursuant to paragraph
(1), (2), (3), (4), (5), (6), (7) or (10) of this Section 5.6(a), an
adjustment shall also be made to the Applicable Market Value solely to
determine which of clauses (a), (b) or (c) of the definition of
Settlement Rate in Section 5.1 will apply on the Purchase Contract
Settlement Date. Such adjustment shall be made by multiplying the
Applicable Market Value by a fraction of which the numerator shall be
the Settlement Rate immediately after such adjustment pursuant to
paragraph (1), (2), (3), (4), (5), (6), (7) or (10) of this Section
5.6(a) and the denominator shall be the Settlement Rate immediately
prior to such adjustment; provided, however, that if such adjustment
to the Settlement Rate is required to be made pursuant to the
occurrence of any of the events contemplated by paragraph (1), (2),
(3), (4), (5), (7) or (10) of this Section 5.6(a) during the period
taken into consideration for determining the Applicable Market Value,
appropriate and customary adjustments shall be made to the Settlement
Rate.
(x) The Company may make such increases in the Settlement
Rate, in addition to those required by this Section, as it considers
to be advisable in order to avoid or diminish any income tax to any
holders of shares of Common Stock resulting from any dividend or
distribution of stock or issuance of rights or warrants to purchase or
subscribe for stock
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or from any event treated as such for income tax purposes or for any
other reason.
(b) Adjustment for Consolidation, Merger or Other Reorganization
Event.
In the event of:
(i) any consolidation or merger of the Company with or into
another Person (other than a merger or consolidation in which the
Company is the continuing corporation and in which the shares of
Common Stock outstanding immediately prior to the merger or
consolidation are not exchanged for cash, securities or other property
of the Company or another corporation);
(ii) any sale, transfer, lease or conveyance to another Person
of the property of the Company as an entirety or substantially as an
entirety;
(iii) any statutory exchange of securities of the Company with
another Person (other than in connection with a merger or
acquisition);
(iv) any liquidation, dissolution or winding up of the Company
other than as a result of or after the occurrence of a Termination
Event, (any such event, a "Reorganization Event").
the Settlement Rate will be adjusted to provide that each Holder of Securities
will receive on the Purchase Contract Settlement Date with respect to each
Purchase Contract forming a part thereof, the kind and amount of securities,
cash and other property receivable upon such Reorganization Event (without any
interest thereon, and without any right to dividends or distribution thereon
which have a record date that is prior to the Purchase Contract Settlement Date)
by a Holder of the number of shares of Common Stock issuable on account of each
Purchase Contract if the Purchase Contract Settlement Date had occurred
immediately prior to such Reorganization Event, assuming such Holder of Common
Stock is not a Person with which the Company consolidated or into which the
Company merged or which merged into the Company or to which such sale or
transfer was made, as the case may be (any such Person, a "Constituent Person"),
or an Affiliate of a Constituent Person to the extent such Reorganization Event
provides for different treatment of Common Stock held by Affiliates of the
Company and non-affiliates and such Holder failed to exercise its rights of
election, if any, as to the kind or amount of securities, cash and other
property receivable upon such Reorganization Event (provided that if the kind or
amount of securities, cash and other property receivable upon such
Reorganization Event is not the same for each share of Common Stock held
immediately prior to such Reorganization Event by other than a Constituent
Person or an Affiliate thereof and in respect of which such rights of election
shall not have been exercised ("non-electing share"), then for the purpose of
this Section the kind and amount of securities, cash and other property
receivable upon such Reorganization Event by each
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non-electing share shall be deemed to be the kind and amount so receivable per
share by a plurality of the non-electing shares).
In the event of such a Reorganization Event, the Person formed by such
consolidation, merger or exchange or the Person which acquires the assets of the
Company or, in the event of a liquidation or dissolution of the Company, the
Company or a liquidating trust created in connection therewith, shall execute
and deliver to the Agent an agreement supplemental hereto providing that the
Holders of each Outstanding Security shall have the rights provided by this
Section 5.6(b). Such supplemental agreement shall provide for adjustments which,
for events subsequent to the effective date of such supplemental agreement,
shall be as nearly equivalent as may be practicable to the adjustments provided
for in this Section. The above provisions of this Section shall similarly apply
to successive Reorganization Events.
Section 5.7 Notice of Adjustments and Certain Other Events.
(a) Whenever the Settlement Rate is adjusted as herein provided,
the Company shall:
(i) forthwith compute the adjusted Settlement Rate in accordance
with Section 5.6 and prepare and transmit to the Agent an Officers'
Certificate setting forth the Settlement Rate, the method of
calculation thereof in reasonable detail, and the facts requiring such
adjustment and upon which such adjustment is based; and
(ii) within 10 Business Days following the occurrence of an event
that requires an adjustment to the Settlement Rate pursuant to Section
5.6 (or if the Company is not aware of such occurrence, as soon as
practicable after becoming so aware), provide a written notice to the
Holders of the Securities of the occurrence of such event and a
statement in reasonable detail setting forth the method by which the
adjustment to the Settlement Rate was determined and setting forth the
adjusted Settlement Rate.
(b) The Agent shall not at any time be under any duty or
responsibility to any Holder of Securities to determine whether any facts exist
which may require any adjustment of the Settlement Rate, or with respect to the
nature or extent or calculation of any such adjustment when made, or with
respect to the method employed in making the same. The Agent shall not be
accountable with respect to the validity or value (or the kind or amount) of any
shares of Common Stock, or of any securities or property, which may at the time
be issued or delivered with respect to any Purchase Contract; and the Agent
makes no representation with respect thereto. The Agent shall not be responsible
for any failure of the Company to issue, transfer or deliver any shares of
Common Stock pursuant to a Purchase Contract or to comply with any of the
duties, responsibilities or covenants of the Company contained in this Article.
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Section 5.8 Termination Event; Notice.
The Purchase Contracts and all obligations and rights of the Company and
the Holders thereunder, including, without limitation, the rights of the Holders
to receive and the obligation of the Company to pay any Contract Adjustment
Payments (including any deferred or accrued and unpaid Contract Adjustment
Payments), if the Company shall have such obligation, and the rights and
obligations of Holders to purchase Common Stock, shall immediately and
automatically terminate, without the necessity of any notice or action by any
Holder, the Agent or the Company, if, on or prior to the Purchase Contract
Settlement Date, a Termination Event shall have occurred.
Upon and after the occurrence of a Termination Event, the Securities shall
thereafter represent the right to receive the Shares forming a part of such
Securities in the case of Corporate SPUS, or Treasury Securities in the case of
Treasury SPUS, in accordance with the provisions of Section 5.4 of the Pledge
Agreement. Upon the occurrence of a Termination Event, the Company shall
promptly but in no event later than two Business Days thereafter give written
notice to the Agent, the Collateral Agent and the Holders, at their addresses as
they appear in the Register.
Section 5.9 Early Settlement.
(a) Subject to and upon compliance with the provisions of this
Section 5.9, at the option of the Holder thereof, Purchase Contracts underlying
Securities may be settled early (an "Early Settlement") in the case of Corporate
SPUS on or prior to the seventh Business Day immediately preceding the Purchase
Contract Settlement Date and in the case of Treasury SPUS on or prior to the
second Business Day immediately preceding the Purchase Contract Settlement Date,
in each case, as provided herein. In order to exercise the right to effect Early
Settlement with respect to any Purchase Contracts, the Holder of the Certificate
evidencing Securities shall deliver such Certificate to the Agent at the
Corporate Trust Office duly endorsed for transfer to the Company or in blank
with the form of Election to Settle Early on the reverse thereof duly completed
and accompanied by payment (payable to the Company in immediately available
funds) in an amount (the "Early Settlement Amount") equal to:
(i) the product of (A) the Stated Amount times (B) the number of
Purchase Contracts with respect to which the Holder has elected to
effect Early Settlement, plus
(ii) if such delivery is made with respect to any Purchase
Contracts during the period from the close of business on any Record
Date next preceding any Payment Date to the opening of business on
such Payment Date, an amount equal to the sum of (x) the Contract
Adjustment Payments payable on such Payment Date with respect to such
Purchase Contracts plus (y) in the case of a Corporate SPUS
Certificate, the distributions on the related Shares payable on such
Payment Date.
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Except as provided in the immediately preceding sentence and subject to the last
paragraph of Section 5.2, no payment or adjustment shall be made upon Early
Settlement of any Purchase Contract on account of any Contract Adjustment
Payments accrued on such Purchase Contract or on account of any dividends on the
Common Stock issued upon such Early Settlement. If the foregoing requirements
are first satisfied with respect to Purchase Contracts underlying any Securities
prior to or at 5:00 p.m. (New York City time) on a Business Day, such day shall
be the "Early Settlement Date" with respect to such Securities and if such
requirements are first satisfied after 5:00 p.m. (New York City time) on a
Business Day or on a day that is not a Business Day, the "Early Settlement Date"
with respect to such Securities shall be the next succeeding Business Day.
(b) Upon Early Settlement of Purchase Contracts by a Holder of the
related Securities, the Company shall issue, and the Holder shall be entitled to
receive _______ shares of Common Stock on account of each Purchase Contract as
to which Early Settlement is effected (the "Early Settlement Rate"). The Early
Settlement Rate shall be adjusted in the same manner and at the same time as the
Settlement Rate is adjusted.
(c) No later than the third Business Day after the applicable Early
Settlement Date, the Company shall cause:
(i) the shares of Common Stock issuable upon Early Settlement of
Purchase Contracts to be issued and delivered, together with payment
in lieu of any fraction of a share, as provided in Section 5.11; and
(ii) the related Shares in the case of Corporate SPUS, or the
related Treasury Securities in the case of Treasury SPUS, to be
released from the Pledge by the Collateral Agent and transferred, in
each case, to the Agent for delivery to the Holder thereof or its
designee.
(d) Upon Early Settlement of any Purchase Contracts, and subject to
receipt of shares of Common Stock from the Company and the Shares or Treasury
Securities, as the case may be, from the Securities Intermediary, as applicable,
the Agent shall, in accordance with the instructions provided by the Holder
thereof on the applicable form of Election to Settle Early on the reverse of the
Certificate evidencing the related Securities:
(i) transfer to the Holder the Shares or Treasury Securities, as
the case may be, forming a part of such Securities; and
(ii) deliver to the Holder a certificate or certificates for the
full number of shares of Common Stock issuable upon such Early
Settlement, together with payment in lieu of any fraction of a share,
as provided in Section 5.10.
(e) In the event that Early Settlement is effected with respect to
Purchase Contracts underlying less than all the Securities evidenced by a
Certificate,
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upon such Early Settlement the Company shall execute and the Agent shall
authenticate, countersign and deliver to the Holder thereof, at the expense of
the Company, a Certificate evidencing the Securities as to which Early
Settlement was not effected.
Section 5.10 No Fractional Shares.
No fractional shares or scrip representing fractional shares of Common
Stock shall be issued or delivered upon settlement on the Purchase Contract
Settlement Date or upon Early Settlement of any Purchase Contracts. If
Certificates evidencing more than one Purchase Contract shall be surrendered for
settlement at one time by the same Holder, the number of full shares of Common
Stock which shall be delivered upon settlement shall be computed on the basis of
the aggregate number of Purchase Contracts evidenced by the Certificates so
surrendered. Instead of any fractional share of Common Stock which would
otherwise be deliverable upon settlement of any Purchase Contracts on the
Purchase Contract Settlement Date or upon Early Settlement, the Company, through
the Agent, shall make a cash payment in respect of such fractional interest in
an amount equal to the value of such fractional shares times the Applicable
Market Value. The Company shall provide the Agent from time to time with
sufficient funds to permit the Agent to make all cash payments required by this
Section 5.10 in a timely manner.
Section 5.11 Charges and Taxes.
The Company will pay all stock transfer and similar taxes attributable to
the initial issuance and delivery of the shares of Common Stock pursuant to the
Purchase Contracts; provided, however, that the Company shall not be required to
pay any such tax or taxes which may be payable in respect of any exchange of or
substitution for a Certificate evidencing a Security or any issuance of a share
of Common Stock in a name other than that of the registered Holder of a
Certificate surrendered in respect of the Securities evidenced thereby, other
than in the name of the Agent, as custodian for such Holder, and the Company
shall not be required to issue or deliver such share certificates or
Certificates unless or until the Person or Persons requesting the transfer or
issuance thereof shall have paid to the Company the amount of such tax or shall
have established to the satisfaction of the Company that such tax has been paid.
ARTICLE VI
REMEDIES
Section 6.1 Unconditional Right of Holders to Receive Contract Adjustment
Payments and to Purchase Shares of Common Stock.
In the event that Contract Adjustment Payments shall constitute a component
of Corporate SPUS or Treasury SPUS, the Holder of any Corporate SPUS or Treasury
SPUS shall have the right, which is absolute and unconditional (subject to the
payment by a holder of Contract Adjustment Payments pursuant to Section 5.9(a)),
to receive
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payment of each installment of the Contract Adjustment Payments with respect to
the Purchase Contract constituting a part of such Security on the respective
Payment Date for such Security and to purchase Common Stock pursuant to such
Purchase Contract and, in each such case, to institute suit for the enforcement
of any such payment and right to purchase Common Stock, and such rights shall
not be impaired without the consent of such Holder.
Section 6.2 Restoration of Rights and Remedies.
If any Holder has instituted any proceeding to enforce any right or remedy
under this Agreement and such proceeding has been discontinued or abandoned for
any reason, or has been determined adversely to such Holder, then and in every
such case, subject to any determination in such proceeding, the Company and such
Holder shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of such Holder shall continue
as though no such proceeding had been instituted.
Section 6.3 Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Certificates in the last paragraph of
Section 3.10, no right or remedy herein conferred upon or reserved to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 6.4 Delay or Omission Not Waiver
No delay or omission of any Holder to exercise any right or remedy upon a
default shall impair any such right or remedy or constitute a waiver of any such
right. Every right and remedy given by this Article or by law to the Holders may
be exercised from time to time, and as often as may be deemed expedient, by such
Holders.
Section 6.5 Undertaking for Costs.
All parties to this Agreement agree, and each Holder of a Corporate SPUS or
a Treasury SPUS, by its acceptance of such Corporate SPUS or Treasury SPUS 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 Agreement, or in any
suit against the Agent for any action taken, suffered or omitted by it as Agent,
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, 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; provided that the provisions of this Section shall not
apply to any suit instituted by the Company, to any suit instituted by the
Agent, to any suit instituted by any Holder, or group of Holders, holding in the
aggregate
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more than [10%] of the Outstanding Securities, or to any suit instituted by any
Holder for the enforcement of dividends payable on any Shares or Contract
Adjustment Payments, if any, on any Purchase Contract on or after the respective
Payment Date therefor in respect of any Security held by such Holder, or for
enforcement of the right to purchase shares of Common Stock under the Purchase
Contracts constituting part of any Security held by such Holder.
Section 6.6 Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Agreement; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Agent or the Holders, but will suffer and permit the
execution of every such power as though no such law had been enacted.
ARTICLE VII
THE AGENT
Section 7.1 Certain Duties and Responsibilities.
(a) The Agent:
(i) undertakes to perform, with respect to the Securities, such
duties and only such duties as are specifically specified in this
Agreement and the Pledge Agreement, and no implied covenants or
obligations shall be read into this Agreement or the Pledge Agreement
against the Agent; and
(ii) in the absence of bad faith or negligence on its part, may,
with respect to the Securities, conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed therein,
upon certificates or opinions furnished to the Agent and conforming to
the requirements of this Agreement or the Pledge Agreement, as
applicable, but in the case of any certificates or opinions which by
any provision hereof are specifically required to be furnished to the
Agent, the Agent shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this
Agreement or the Pledge Agreement, as applicable.
(b) No provision of this Agreement or the Pledge Agreement shall be
construed to relieve the Agent from liability for its own negligent action, its
own negligent failure to act, or its own willful misconduct, except that:
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(i) this Subsection shall not be construed to limit the effect
of Subsection (a) of this Section;
(ii) the Agent shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved
that the Agent was negligent in ascertaining the pertinent facts; and
(iii) no provision of this Agreement or the Pledge Agreement
shall require the Agent 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
adequate indemnity is not provided to it.
(c) Whether or not therein expressly so provided, every provision of
this Agreement and the Pledge Agreement relating to the conduct or affecting the
liability of or affording protection to the Agent shall be subject to the
provisions of this Section.
(d) The Agent is authorized to execute and deliver the Pledge
Agreement in its capacity as Agent.
Section 7.2 Notice of Default.
Within 30 days after the occurrence of any default by the Company hereunder
of which a Responsible Officer of the Agent has actual knowledge, the Agent
shall transmit by mail to the Company and the Holders of Securities, as their
names and addresses appear in the Register, notice of such default hereunder,
unless such default shall have been cured or waived.
Section 7.3 Certain Rights of Agent.
Subject to the provisions of Section 7.1:
(a) the Agent may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by an Officers' Certificate, Issuer Order or Issuer
Request, and any resolution of the Board of Directors of the Company may be
sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Agreement or the Pledge
Agreement the Agent shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action hereunder, the
Agent (unless other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon an Officers' Certificate of the
Company;
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(d) the Agent may consult with counsel and the written advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(e) the Agent shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the Agent,
in its discretion, may make reasonable further inquiry or investigation into
such facts or matters related to the execution, delivery and performance of the
Purchase Contracts as it may see fit, and, if the Agent shall determine to make
such further inquiry or investigation, it shall be given a reasonable
opportunity to examine the books, records and premises of the Company,
personally or by agent or attorney; and
(f) the Agent may execute any of the powers hereunder or perform any
duties hereunder either directly or by or through agents or attorneys or an
Affiliate and the Agent shall not be responsible for any misconduct or
negligence on the part of any agent or attorney or an Affiliate appointed with
due care by it hereunder.
Section 7.4 Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Certificates shall be taken as the
statements of the Company, and the Agent assumes no responsibility for their
accuracy, other than for the Certificate of Authentication contained in the
Certificates. The Agent makes no representations as to the validity or
sufficiency of either this Agreement or of the Securities, or of the Pledge
Agreement or the Pledge. The Agent shall not be accountable for the use or
application by the Company of the proceeds in respect of the Purchase Contracts.
Section 7.5 May Hold Securities.
Any Registrar or any other agent of the Company, or the Agent and its
Affiliates, in their individual or any other capacity, may become the owner or
pledgee of Securities and may otherwise deal with the Company, the Collateral
Agent or any other Person with the same rights it would have if it were not
Registrar or such other agent, or the Agent.
Section 7.6 Money Held in Custody.
Money held by the Agent in custody hereunder need not be segregated from
the other funds except to the extent required by law or provided herein. The
Agent shall be under no obligation to invest or pay interest on any money
received by it hereunder except as otherwise agreed in writing with the Company.
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Section 7.7 Compensation and Reimbursement.
The Company agrees:
(a) to pay to the Agent compensation for all services rendered by it
hereunder and under the Pledge Agreement as the Company and the Agent shall from
time to time agree in writing;
(b) except as otherwise expressly provided for herein, to reimburse
the Agent upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Agent in accordance with any provision of this
Agreement and the Pledge 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; and
(c) to indemnify the Agent and any predecessor Agent for, and to hold
it harmless against, any loss, liability or expense incurred without negligence
or bad faith on its part, arising out of or in connection with the acceptance or
administration of its duties 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.
Section 7.8 Corporate Agent Required; Eligibility.
There shall at all times be an Agent hereunder which shall be a corporation
organized and doing business under the laws of the United States of America, any
State thereof or the District of Columbia, authorized under such laws to
exercise corporate trust powers, having (or being a member of a bank holding
company having) a combined capital and surplus of at least $50,000,000, subject
to supervision or examination by federal or State authority and having a
corporate trust office in the Borough of Manhattan, New York City, if there be
such a corporation in the Borough of Manhattan, New York City, qualified and
eligible under this Article and willing to act on reasonable terms. If such
corporation publishes reports of condition at least annually, pursuant to law or
to the requirements of such 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 specified in its most
recent report of condition so published. If at any time the 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 hereinafter specified in this
Article.
Section 7.9 Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Agent and no appointment of a
successor Agent pursuant to this Article shall become effective until the
acceptance of appointment by the successor Agent in accordance with the
applicable requirements of Section 7.10.
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(b) The Agent may resign at any time by giving written notice thereof
to the Company 60 days prior to the effective date of such resignation. If the
instrument of acceptance by a successor Agent required by Section 7.10 shall not
have been delivered to the Agent within 30 days after the giving of such notice
of resignation, the resigning Agent may petition any court of competent
jurisdiction for the appointment of a successor Agent.
(c) The Agent may be removed at any time by Act of the Holders of a
majority in number of the Outstanding Securities delivered to the Agent and the
Company.
(d) If at any time:
(i) the Agent fails to comply with Section 310(b) of the TIA,
as if the Agent were an indenture trustee under an indenture qualified
under the TIA, after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Security for at least six
months;
(ii) the Agent shall cease to be eligible under Section 7.8 and
shall fail to resign after written request therefor by the Company or
by any such Holder; or
(iii) the Agent shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Agent or of its
property shall be appointed or any public officer shall take charge or
control of the Agent or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Agent, or (ii) any Holder who has been a bona fide Holder of a Security 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 Agent and
the appointment of a successor Agent.
(e) If the Agent shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Agent for any cause, the
Company, by a Board Resolution, shall promptly appoint a successor Agent and
shall comply with the applicable requirements of Section 7.10. If no successor
Agent shall have been so appointed by the Company and accepted appointment in
the manner required by Section 7.10, any Holder who has been a bona fide Holder
of a Security for at least six months may, on behalf of itself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Agent.
(f) The Company shall give, or shall cause such successor Agent to
give, notice of each resignation and each removal of the Agent and each
appointment of a successor Agent by mailing written notice of such event by
first-class mail, postage
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prepaid, to all Holders as their names and addresses appear in the applicable
Register. Each notice shall include the name of the successor Agent and the
address of its Corporate Trust Office.
Section 7.10 Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Agent, every
such successor Agent so appointed shall execute, acknowledge and deliver to the
Company and to the retiring Agent an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Agent shall become
effective and such successor Agent, without any further act, deed or conveyance,
shall become vested with all the rights, powers, agencies and duties of the
retiring Agent; but, on the request of the Company or the successor Agent, such
retiring Agent shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor Agent all the rights, powers and
trusts of the retiring Agent and shall duly assign, transfer and deliver to such
successor Agent all property and money held by such retiring Agent hereunder.
(b) Upon request of any such successor Agent, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Agent all such rights, powers and agencies referred
to in paragraph (a) of this Section.
(c) No successor Agent shall accept its appointment unless at the
time of such acceptance such successor Agent shall be qualified and eligible
under this Article.
Section 7.11 Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Agent 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 Agent shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Agent, shall be the successor of the Agent hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article, with
the execution or filing of any paper or any further act on the part of any of
the parties hereto. In case any Certificates shall have been authenticated and
executed on behalf of the Holders, but not delivered, by the Agent then in
office, any successor by merger, conversion or consolidation to such Agent may
adopt such authentication and execution and deliver the Certificates so
authenticated and executed with the same effect as if such successor Agent had
itself authenticated and executed such Securities.
Section 7.12 Preservation of Information; Communications to Holders.
(a) The Agent shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders received by the Agent in its
capacity as Registrar.
(b) If three or more Holders (herein referred to as "applicants")
apply in writing to the Agent, and furnish to the Agent reasonable proof that
each such
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applicant has owned a Security for a period of at least six months preceding the
date of such application, and such application states that the applicants desire
to communicate with other Holders with respect to their rights under this
Agreement or under the Securities and is accompanied by a copy of the form of
proxy or other communication which such applicants propose to transmit, then the
Agent shall mail to all the Holders copies of the form of proxy or other
communication which is specified in such request, with reasonable promptness
after a tender to the Agent of the materials to be mailed and of payment, or
provision for the payment, of the reasonable expenses of such mailing.
Section 7.13 No Obligations of Agent.
Except to the extent otherwise expressly provided in this Agreement, the
Agent assumes no obligations and shall not be subject to any liability under
this Agreement, the Pledge Agreement or any Purchase Contract in respect of the
obligations of the Holder of any Security thereunder. The Company agrees, and
each Holder of a Certificate, by its acceptance thereof, shall be deemed to have
agreed, that the Agent's execution of the Certificates on behalf of the Holders
shall be solely as agent and attorney- in-fact for the Holders, and that the
Agent shall have no obligation to perform such Purchase Contracts on behalf of
the Holders, except to the extent expressly provided in Article Five hereof.
Anything contained in this Agreement to the contrary notwithstanding, in no
event shall the Agent or its officers, employees or agents be liable under this
Agreement to any third party for indirect, special, punitive, or consequential
loss or damage of any kind whatsoever, including lost profits, whether or not
the likelihood of such loss or damage was known to the Agent, incurred without
any act or deed that is found to be attributable to gross negligence or willful
misconduct on the part of the Agent.
Section 7.14 Tax Compliance.
(a) The Company will comply with all applicable certification,
information reporting and withholding (including "backup" withholding)
requirements imposed by applicable tax laws, regulations or administrative
practice with respect to (i) any payments made with respect to the Securities or
(ii) the issuance, delivery, holding, transfer, redemption or exercise of rights
under the Securities. Such compliance shall include, without limitation, the
preparation and timely filing of required returns and the timely payment of all
amounts required to be withheld to the appropriate taxing authority or its
designated agent.
(b) The Agent shall comply in accordance with the terms hereof with
any written direction received from the Company with respect to the execution or
certification of any required documentation and the application of such
requirements to particular payments or Holders or in other particular
circumstances, and may for purposes of this Agreement rely on any such direction
in accordance with the provisions of Section 7.1(a)(2) hereof.
(c) The Agent shall maintain all appropriate records documenting
compliance with such requirements, and shall make such records available, on
written
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request, to the Company or its authorized representative within a reasonable
period of time after receipt of such request.
ARTICLE VIII
SUPPLEMENTAL AGREEMENTS
Section 8.1 Supplemental Agreements Without Consent of Holders.
Without the consent of any Holders, the Company and the Agent, at any time
and from time to time, may enter into one or more agreements supplemental
hereto, in form satisfactory to the Company and the Agent, to:
(a) evidence the succession of another Person to the Company, and the
assumption by any such successor of the covenants of the Company herein and in
the Certificates;
(b) evidence and provide for the acceptance of appointment hereunder
by a successor Agent;
(c) add to the covenants of the Company for the benefit of the
Holders, or surrender any right or power herein conferred upon the Company;
(d) make provision with respect to the rights of Holders pursuant to
the requirements of Section 5.6(b); or
(e) except as provided for in Section 5.6, cure any ambiguity,
correct or supplement any provisions herein which may be inconsistent with any
other provisions herein, or make any other provisions with respect to such
matters or questions arising under this Agreement, provided such action shall
not adversely affect the interests of the Holders.
Section 8.2 Supplemental Agreements With Consent of Holders.
With the consent of the Holders of not less than a majority of the
outstanding Purchase Contracts voting together as one class, by Act of such
Holders delivered to the Company and the Agent, the Company, when authorized by
a Board Resolution, and the Agent may enter into an agreement or agreements
supplemental hereto for the purpose of modifying in any manner the terms of the
Purchase Contracts, or the provisions of this Agreement or the rights of the
Holders in respect of the Securities; provided, however, that, except as
contemplated herein, no such supplemental agreement shall, without the unanimous
consent of the Holders of each outstanding Purchase Contract affected thereby,
(a) change any Payment Date;
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(b) change the amount or the type of Collateral required to be
Pledged to secure a Holder's obligations under the Purchase Contract, impair the
right of the Holder of any Purchase Contract to receive interest on the related
Collateral (except for the rights of Holders of Corporate SPUS to substitute
Treasury Securities for the Pledged Shares or the rights of Holders or Treasury
SPUS to substitute Shares for the Pledged Treasury Securities) or otherwise
adversely affect the Holder's rights in or to such Collateral or adversely alter
the rights in or to such Collateral;
(c) reduce any Contract Adjustment Payments or change any place
where, or the coin or currency in which, any Contract Adjustment Payment is
payable;
(d) impair the right to institute suit for the enforcement of any
Purchase Contract;
(e) reduce the number of shares of Common Stock to be purchased
pursuant to any Purchase Contract, increase the price to purchase shares of
Common Stock upon settlement of any Purchase Contract, change the Purchase
Contract Settlement Date or otherwise adversely affect the Holder's rights under
any Purchase Contract; or
(f) reduce the percentage of the outstanding Purchase Contracts the
consent of whose Holders is required for any such supplemental agreement;
provided that if any amendment or proposal referred to above would adversely
affect only the Corporate SPUS or the Treasury SPUS, then only the affected
class of Holders as of the record date for the Holders entitled to vote thereon
will be entitled to vote on such amendment or proposal, and such amendment or
proposal shall not be effective except with the consent of Holders of not less
than a majority of such class; and provided, further, that the unanimous consent
of the Holders of each outstanding Purchase Contract of such class affected
thereby shall be required to approve any amendment or proposal specified in
clauses (a) through (f) above.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental agreement, but it shall
be sufficient if such Act shall approve the substance thereof.
Section 8.3 Execution of Supplemental Agreements.
In executing, or accepting the additional agencies created by, any
supplemental agreement permitted by this Article or the modifications thereby of
the agencies created by this Agreement, the Agent shall be entitled to receive,
and (subject to Section 7.1) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental agreement is
authorized or permitted by this Agreement. The Agent may, but shall not be
obligated to, enter into any such supplemental agreement which affects the
Agent's own rights, duties or immunities under this Agreement or otherwise.
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Section 8.4 Effect of Supplemental Agreements.
Upon the execution of any supplemental agreement under this Article, this
Agreement shall be modified in accordance therewith, and such supplemental
agreement shall form a part of this Agreement for all purposes; and every Holder
of Certificates theretofore or thereafter authenticated, executed on behalf of
the Holders and delivered hereunder, shall be bound thereby.
Section 8.5 Reference to Supplemental Agreements.
Certificates authenticated, executed on behalf of the Holders and delivered
after the execution of any supplemental agreement pursuant to this Article may,
and shall if required by the Agent, bear a notation in form approved by the
Agent as to any matter provided for in such supplemental agreement. If the
Company shall so determine, new Certificates so modified as to conform, in the
opinion of the Agent and the Company, to any such supplemental agreement may be
prepared and executed by the Company and authenticated, executed on behalf of
the Holders and delivered by the Agent in exchange for Outstanding Certificates.
ARTICLE IX
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 9.1 Covenant Not to Consolidate, Merge, Sell or Convey Property Except
Under Certain Conditions.
The Company covenants that it will not merge or consolidate with any other
Person or sell, assign, transfer, lease or convey all or substantially all of
its properties and assets to any Person or group of affiliated Persons in one
transaction or a series of related transactions, unless:
(a) either the Company shall be the continuing corporation, or the
successor (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 all the
obligations of the Company under the Purchase Contracts, this Agreement and the
Pledge Agreement by one or more supplemental agreements in form reasonably
satisfactory to the Agent and the Collateral Agent, executed and delivered to
the Agent and the Collateral Agent by such corporation; and
(b) the Company or such successor corporation, as the case may be,
shall not, immediately after such consolidation, merger, sale, assignment,
transfer, lease or conveyance, be in default in the performance of any covenant
or condition hereunder, under any of the Securities or under the Pledge
Agreement.
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Section 9.2 Rights and Duties of Successor Corporation.
In case of any such consolidation, merger, sale, assignment, transfer,
lease or conveyance and upon any such assumption by a successor corporation in
accordance with Section 9.1, 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 Company. Such successor corporation thereupon may cause to be signed, and
may issue either in its own name or in the name of Dominion Resources, Inc., any
or all of the Certificates evidencing Securities issuable hereunder which
theretofore shall not have been signed by the Company and delivered to the
Agent; and, upon the order of such successor corporation, instead of the
Company, and subject to all the terms, conditions and limitations in this
Agreement prescribed, the Agent shall authenticate and execute on behalf of the
Holders and deliver any Certificates which previously shall have been signed and
delivered by the officers of the Company to the Agent for authentication and
execution, and any Certificate evidencing Securities which such successor
corporation thereafter shall cause to be signed and delivered to the Agent for
that purpose. All the Certificates issued shall in all respects have the same
legal rank and benefit under this Agreement as the Certificates theretofore or
thereafter issued in accordance with the terms of this Agreement as though all
of such Certificates had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, assignment, transfer,
lease or conveyance such change in phraseology and form (but not in substance)
may be made in the Certificates evidencing Securities thereafter to be issued as
may be appropriate.
Section 9.3 Officers' Certificate and Opinion of Counsel Given to Agent.
The Agent, subject to Sections 7.1 and 7.3, shall receive an Officers'
Certificate and an Opinion of Counsel as conclusive evidence that any such
consolidation, merger, sale, assignment, transfer, lease or conveyance, and any
such assumption, complies with the provisions of this Article and that all
conditions precedent to the consummation of any such consolidation, merger,
sale, assignment, transfer, lease or conveyance have been met.
ARTICLE X
COVENANTS
Section 10.1 Performance Under Purchase Contracts.
The Company covenants and agrees for the benefit of the Holders from time
to time of the Securities that it will duly and punctually perform its
obligations under the Purchase Contracts in accordance with the terms of the
Purchase Contracts and this Agreement.
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SECTION 10.2 Maintenance of Office or Agency.
The Company will maintain in the Borough of Manhattan, New York City an
office or agency where Certificates may be presented or surrendered for
acquisition of shares of Common Stock upon settlement of the Purchase Contracts
on the Purchase Contract Settlement Date or Early Settlement and for transfer of
Collateral upon occurrence of a Termination Event, where Certificates may be
surrendered for registration of transfer or exchange, for a Collateral
Substitution or reestablishment of Corporate SPUS and where notices and demands
to or upon the Company in respect of the Securities and this Agreement may be
served. The Company will give prompt written notice to the Agent of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Agent with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office, and the Company hereby appoints the Agent as its agent to receive all
such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other offices
or agencies where Certificates may be presented or surrendered for any or all
such purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in the Borough of
Manhattan, New York City for such purposes. The Company will give prompt written
notice to the Agent of any such designation or rescission and of any change in
the location of any such other office or agency. The Company hereby designates
as the place of payment for the Securities the Corporate Trust Office and
appoints the Agent at its Corporate Trust Office as paying agent in such city.
SECTION 10.3 Company to Reserve Common Stock.
The Company shall at all times prior to the Purchase Contract Settlement
Date reserve and keep available, free from preemptive rights, out of its
authorized but unissued Common Stock the full number of shares of Common Stock
issuable against tender of payment in respect of all Purchase Contracts
constituting a part of the Securities evidenced by Outstanding Certificates.
SECTION 10.4 Covenants as to Common Stock.
The Company covenants that all shares of Common Stock which may be issued
against tender of payment in respect of any Purchase Contract constituting a
part of the Outstanding Securities will, upon issuance, be duly authorized,
validly issued, fully paid and nonassessable.
SECTION 10.5 Statements of Officers of the Company as to Default.
The Company will deliver to the Agent, within 140 days after the end of
each fiscal year of the Company (which as of the date hereof is December 31)
ending after the
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date hereof, an Officers' Certificate (one of the signers of which shall be the
principal executive officer, principal financial officer or principal accounting
officer of the Company), stating whether or not to the knowledge of the signers
thereof the Company is in default in the performance and observance of any of
the terms, provisions and conditions hereof, and if the Company shall be in
default, specifying all such defaults and the nature and status thereof of which
they may have knowledge.
SECTION 10.6 ERISA.
Each Holder from time to time of the Corporate SPUS which is a Plan hereby
represents that its acquisition of the Corporate SPUS and the holding of the
same satisfies the applicable fiduciary requirements of ERISA and that it is
entitled to exemption relief from the prohibited transaction provisions of ERISA
and the Code in accordance with one or more prohibited transaction exemptions or
otherwise will not result in a nonexempt prohibited transaction.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
DOMINION RESOURCES, INC.
By:_____________________
Name:
Title:
_______________________,
As Agent
By:_____________________
Name:
Title:
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EXHIBIT A
FACE OF CORPORATE SPUS CERTIFICATE
"THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE
PURCHASE CONTRACT AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE
NAME OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE "DEPOSITARY"),
OR A NOMINEE OF THE DEPOSITARY. THIS CERTIFICATE IS EXCHANGEABLE FOR
CERTIFICATES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS
NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE PURCHASE CONTRACT
AGREEMENT AND NO TRANSFER OF THIS CERTIFICATE (OTHER THAN A TRANSFER OF THIS
CERTIFICATE 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 LIMITED CIRCUMSTANCES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN."
NO. _______ CUSIP NO. [__________]
NUMBER OF CORPORATE SPUS ________
DOMINION RESOURCES, INC.
CORPORATE SPUS
This Corporate SPUS Certificate certifies that Cede & Co. is the registered
Holder of the number of Corporate SPUS set forth above. Each Corporate SPUS
consists of (i) the beneficial ownership by the Holder of one share of Series B
Preferred Stock (the "Share") of Dominion Resources, Inc., a Virginia
corporation (the "Company"), having a liquidation preference of $50, subject to
the Pledge of such Share by such Holder pursuant to the Pledge Agreement, and
(ii) the rights and obligations of the Holder under one Purchase Contract with
the Company. All capitalized terms used herein which are defined in the Purchase
Contract Agreement (as defined on the reverse hereof) have the meaning set forth
therein.
Pursuant to the Pledge Agreement, the Share constituting part of each
Corporate SPUS evidenced hereby has been pledged to the Collateral Agent, for
the benefit of the Company, to secure the obligations of the Holder under the
Purchase Contract comprising a portion of such Corporate SPUS.
The Pledge Agreement provides that all payments of the principal amount
with respect to any of the Pledged Shares or cash dividends on any Pledged
Shares (as defined in the Pledge Agreement) constituting part of the Corporate
SPUS received by the Securities Intermediary shall be paid by wire transfer in
same day funds (i) in the case of (A) cash dividends with respect to Pledged
Shares and (B) any payments of the liquidation preference with respect to any
Share or security entitlements thereto that have been released from the Pledge
pursuant to the Pledge Agreement, to the Agent to the account designated by the
Agent, no later than 12:00 p.m., New York City time, on the Business Day such
payment is received by the Securities Intermediary (PROVIDED that in the event
such payment is received by the Securities Intermediary on a day that is not a
Business Day or after 12:30 p.m., New York City time, on a Business Day, then
such payment shall be made no later than 10:30 a.m., New York City time, on the
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succeeding Business Day) and (ii) in the case of Proceeds from the Remarketing
with respect to any of the Pledged Shares or security entitlements thereto, to
the Company on the Purchase Contract Settlement Date (as described herein) in
accordance with the terms of the Pledge Agreement, in full satisfaction of the
respective obligations of the Holders of the Corporate SPUS of which such
Pledged Shares are a part under the Purchase Contracts forming a part of such
Corporate SPUS. Dividends on any Share forming part of a Corporate SPUS
evidenced hereby, which is payable quarterly in arrears on [_______________],
[_______________], [_______________] and [_______________] of each year,
commencing [_______________], ____ (a "Payment Date"), shall, subject to receipt
thereof by the Agent from the Securities Intermediary, be paid to the Person in
whose name this Corporate SPUS Certificate (or a Predecessor Corporate SPUS
Certificate) is registered at the close of business on the Record Date for such
Payment Date.
Each Purchase Contract evidenced hereby obligates the Holder of this
Corporate SPUS Certificate to purchase, and the Company to sell, on
[__________], 2002 (the "Purchase Contract Settlement Date"), at a price equal
to $50 in cash (the "Stated Amount"), a number of Common Shares, par value $0.01
("Common Stock"), of the Company, equal to the Settlement Rate, unless on or
prior to the Purchase Contract Settlement Date there shall have occurred a
Termination Event or an Early Settlement with respect to the Corporate SPUS of
which such Purchase Contract is a part, all as provided in the Purchase Contract
Agreement and more fully described on the reverse hereof. The purchase price
(the "Purchase Price") for the shares of Common Stock purchased pursuant to each
Purchase Contract evidenced hereby, if not paid earlier, shall be paid on the
Purchase Contract Settlement Date by separate cash or by application of payment
received, pursuant to the Remarketing, in respect of the liquidation preference
with respect to any Pledged Shares pledged to secure the obligations under such
Purchase Contract of the Holder of the Corporate SPUS of which such Purchase
Contract is a part.
The Company shall pay, on each Payment Date, in respect of each Purchase
Contract forming part of a Corporate SPUS evidenced hereby an amount (the
"Contract Adjustment Payments") equal to (a) if a Reset Transaction has not
occurred, [___]% per annum of the Stated Amount or (b) following the occurrence
of a Reset Transaction, the Adjusted Contract Adjustment Payment Rate related to
such Reset Transaction until any such succeeding Reset Transaction shall occur
(computed on the basis of (i) for any full quarterly period, a 360-day year of
twelve 30-day months and (ii) for any period shorter than a full quarterly
period, a 30-day month and for periods less than a month, the actual number of
days elapsed per 30-day period). Such Contract Adjustment Payments shall be
payable to the Person in whose name this Corporate SPUS Certificate (or a
Predecessor Corporate SPUS Certificate) is registered at the close of business
on the Record Date for such Payment Date.
Dividends on the Shares and Contract Adjustment Payments will be payable at
the office of the Agent in New York City or, at the option of the Company, by
check mailed to the address of the Person entitled thereto as such address
appears on the Corporate SPUS Register.
Reference is hereby made to the further provisions set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as
if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Agent by manual signature, this Corporate SPUS Certificate shall not be entitled
to any benefit under the Pledge Agreement or the Purchase Contract Agreement or
be valid or obligatory for any purpose.
2
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
DOMINION RESOURCES, INC.
By: ________________________________
Name:
Title:
By: ________________________________
Name:
Title:
HOLDER SPECIFIED ABOVE (as to
obligations of such Holder under the
Purchase Contracts evidenced hereby)
By: [______________________________]
not individually but solely as
Attorney-in-Fact of such Holder
By: ________________________________
Name:
Title:
Dated:
AGENT'S CERTIFICATE OF AUTHENTICATION
This is one of the Corporate SPUS Certificates referred to in the within
mentioned Purchase Contract Agreement.
By: [______________________________]
as Purchase Contract Agent
By: ________________________________
Authorized Officer
(FORM OF REVERSE OF CORPORATE SPUS CERTIFICATE)
Each Purchase Contract evidenced hereby is governed by a Purchase Contract
Agreement, dated as of _______ [___], ____ (as may be supplemented from time to
time, the "Purchase Contract Agreement"), between the Company and
[_______________________________], as Purchase Contract Agent (including its
successors hereunder, the "Agent"), to which Purchase Contract Agreement and
supplemental agreements thereto reference is hereby made for a description of
the respective rights, limitations of rights, obligations, duties and immunities
thereunder of the Agent, the Company, and the Holders and of the terms upon
which the Corporate SPUS Certificates are, and are to be, executed and
delivered.
3
<PAGE>
Each Purchase Contract evidenced hereby obligates the Holder of this
Corporate SPUS Certificate to purchase, and the Company to sell, on the Purchase
Contract Settlement Date at a price equal to the Stated Amount (the "Purchase
Price"), a number of shares of Common Stock of the Company equal to the
Settlement Rate, unless, on or prior to the Purchase Contract Settlement Date,
there shall have occurred a Termination Event with respect to the Security of
which such Purchase Contract is a part or an Early Settlement shall have
occurred. The "Settlement Rate" is equal to (a) if the Applicable Market Value
(as defined below) is equal to or greater than $[_______] (the "Threshold
Appreciation Price"), [__________] shares of Common Stock per Purchase Contract,
(b) if the Applicable Market Value is less than the Threshold Appreciation Price
but is greater than $[_______] the number of shares of Common Stock per Purchase
Contract equal to the Stated Amount divided by the Applicable Market Value and
(c) if the Applicable Market Amount is less than or equal to $[________],
[________] shares of Common Stock per Purchase Contract, in each case subject to
adjustment as provided in the Purchase Contract Agreement. No fractional shares
of Common Stock will be issued upon settlement of Purchase Contracts, as
provided in the Purchase Contract Agreement.
Each Purchase Contract evidenced hereby, which is settled either through
Early Settlement or Cash Settlement, shall obligate the Holder of the related
Corporate SPUS to purchase at the Purchase Price, and the Company to sell, a
number of newly issued shares of Common Stock equal to the Early Settlement Rate
or the Settlement Rate, as applicable.
The "Applicable Market Value" means the average of the Closing Price per
share of Common Stock on each of the 20 Trading Days ending on the third Trading
Day immediately preceding the Purchase Contract Settlement Date. The "Closing
Price" of the Common Stock on any date of determination means (i) the closing
sale price (or, if no closing price is reported, the last reported sale price)
of the Common Stock on the Nasdaq National Market on such date, (ii) if the
Common Stock is not listed for trading on the Nasdaq National Market on any such
date, the closing sale price as reported in the composite transactions for the
principal United States securities exchange on which the Common Stock is so
listed, (iii) if the Common Stock is not so reported, the last quoted bid price
for the Common Stock in the over-the-counter market as reported by the National
Quotation Bureau or similar organization or (iv) if such bid price is not
available, the average of the mid-point of the last bid and ask prices of the
Common Stock on such date from at least three nationally recognized independent
investment banking firms retained for this purpose by the Company. A "Trading
Day" means a day on which the Common Stock (A) is not suspended from trading on
any national or regional securities exchange or association or over-the-counter
market at the close of business and (B) has traded at least once on the national
or regional securities exchange or association or over-the-counter market that
is the primary market for the trading of the Common Stock.
In accordance with the terms of the Purchase Contract Agreement, the Holder
of this Corporate SPUS Certificate may pay the Purchase Price for the shares of
Common Stock purchased pursuant to each Purchase Contract evidenced hereby by
effecting a Cash Settlement or an Early Settlement or a remarketing of the
related Pledged Shares. A Holder of Corporate SPUS who does not effect, on or
prior to 11:00 a.m. New York City time on the fifth Business Day immediately
preceding the Purchase Contract Settlement Date, an effective Cash Settlement or
an Early Settlement, shall pay the Purchase Price for the shares of Common Stock
to be issued under the related Purchase Contract from the proceeds of the sale
of the related Pledged Shares held by the Collateral Agent. Such sale will be
made by the Remarketing Agent pursuant to the terms of the Remarketing Agreement
on the third Business Day prior to the Purchase Contract Settlement Date. If, as
provided in the Purchase Contract Agreement, upon the occurrence of a Failed
Remarketing the Collateral Agent, for the benefit of the Company, exercises its
rights as a secured creditor with respect to the Pledged Shares related to this
Corporate SPUS certificate, any accrued and unpaid dividends on such Pledged
Shares will become payable by the Company to the holder of this Corporate SPUS
Certificate in the manner provided for in the Purchase Contract Agreement.
The Company shall not be obligated to issue any shares of Common Stock in
respect of a Purchase Contract or deliver any certificates therefor to the
Holder unless it shall have received payment of the aggregate purchase price for
the shares of Common Stock to be purchased thereunder in the manner herein set
forth.
4
<PAGE>
Each Purchase Contract evidenced hereby and all obligations and rights of
the Company and the Holder thereunder shall terminate if a Termination Event
shall occur. Upon the occurrence of a Termination Event, the Company shall give
written notice to the Agent and to the Holders, at their addresses as they
appear in the Corporate SPUS Register. Upon and after the occurrence of a
Termination Event, the Collateral Agent shall release the Pledged Share forming
a part of each Corporate SPUS from the Pledge. A Corporate SPUS shall thereafter
represent the right to receive the Share forming a part of such Corporate SPUS
in accordance with the terms of the Purchase Contract Agreement and the Pledge
Agreement.
Under the terms of the Pledge Agreement, the Agent will be entitled to
exercise the voting and any other consensual rights pertaining to the Pledged
Shares. Upon receipt of notice of any meeting at which holders of Shares are
entitled to vote or upon the solicitation of consents, waivers or proxies of
holders of Shares, the Agent shall, as soon as practicable thereafter, mail to
the Corporate SPUS Holders a notice (a) containing such information as is
contained in the notice or solicitation, (b) stating that each Corporate SPUS
Holder on the record date set by the Agent therefor (which, to the extent
possible, shall be the same date as the record date for determining the holders
of Shares entitled to vote) shall be entitled to instruct the Agent as to the
exercise of the voting rights pertaining to the Shares constituting a part of
such Holder's Corporate SPUS and (c) stating the manner in which such
instructions may be given. Upon the written request of the Corporate SPUS
Holders on such record date, the Agent shall endeavor insofar as practicable to
vote or cause to be voted, in accordance with the instructions set forth in such
requests, the maximum aggregate principal amount of Shares as to which any
particular voting instructions are received. In the absence of specific
instructions from the Holder of a Corporate SPUS, the Agent shall abstain from
voting the Shares evidenced by such Corporate SPUS.
The Corporate SPUS Certificates are issuable only in registered form and
only in denominations of a single Corporate SPUS and any integral multiple
thereof. The transfer of any Corporate SPUS Certificate will be registered and
Corporate SPUS Certificates may be exchanged as provided in the Purchase
Contract Agreement. The Corporate SPUS Registrar may require a Holder, among
other things, to furnish appropriate endorsements and transfer documents
permitted by the Purchase Contract Agreement. No service charge shall be
required for any such registration of transfer or exchange, but the Company and
the Agent may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith. A holder who elects to
substitute a Treasury Security for Shares, thereby creating Treasury SPUS, shall
be responsible for any fees or expenses payable in connection therewith. Except
as provided in the Purchase Contract Agreement, for so long as the Purchase
Contract underlying a Corporate SPUS remains in effect, such Corporate SPUS
shall not be separable into its constituent parts, and the rights and
obligations of the Holder of such Corporate SPUS in respect of the Share and
Purchase Contract constituting such Corporate SPUS may be transferred and
exchanged only as a Corporate SPUS. The holder of a Corporate SPUS may
substitute for the Pledged Shares securing its obligation under the related
Purchase Contract Treasury Securities in an aggregate principal amount equal to
the aggregate principal amount of the Pledged Shares in accordance with the
terms of the Purchase Contract Agreement and the Pledge Agreement. From and
after such Collateral Substitution, the Security for which such Pledged Treasury
Securities secures the holder's obligation under the Purchase Contract shall be
referred to as a "Treasury SPUS." A Holder may make such Collateral Substitution
only in integral multiples of 20 Corporate SPUS for 20 Treasury SPUS. Such
Collateral Substitution may cause the equivalent aggregate principal amount of
this Certificate to be increased or decreased; PROVIDED, HOWEVER, this Corporate
SPUS Certificate shall not represent more than ____ Corporate SPUS. All such
adjustments to the equivalent aggregate principal amount of this Corporate SPUS
Certificate shall be duly recorded by placing an appropriate notation on the
Schedule attached hereto.
A Holder of Treasury SPUS may recreate Corporate SPUS by delivering to the
Securities Intermediary Shares with an aggregate liquidation preference equal to
the aggregate principal amount of the Pledged Treasury Securities in exchange
for the release of such Pledged Treasury Securities in accordance with the terms
of the Purchase Contract Agreement and the Pledge Agreement.
5
<PAGE>
The Company shall pay, on each Payment Date, the Contract Adjustment
Payments payable in respect of each Purchase Contract to the Person in whose
name the Corporate SPUS Certificate evidencing such Purchase Contract is
registered at the close of business on the Record Date for such Payment Date.
Contract Adjustment Payments will be payable at the office of the Agent in New
York City or, at the option of the Company, by check mailed to the address of
the Person entitled thereto at such address as it appears on the Corporate SPUS
Register.
The Purchase Contracts and all obligations and rights of the Company and
the Holders thereunder, including, without limitation, the rights of the Holders
to receive and the obligation of the Company to pay any Contract Adjustment
Payments, shall immediately and automatically terminate, without the necessity
of any notice or action by any Holder, the Agent or the Company, if, on or prior
to the Purchase Contract Settlement Date, a Termination Event shall have
occurred. Upon the occurrence of a Termination Event, the Company shall promptly
but in no event later than two Business Days thereafter give written notice to
the Agent, the Collateral Agent and the Holders, at their addresses as they
appear in the Corporate SPUS Register. Upon and after the occurrence of a
Termination Event, the Collateral Agent shall release the Shares from the Pledge
in accordance with the provisions of the Pledge Agreement.
Subject to and upon compliance with the provisions of the Purchase Contract
Agreement, at the option of the Holder thereof, Purchase Contracts underlying
Securities may be settled early (an "Early Settlement") as provided in the
Purchase Contract Agreement. In order to exercise the right to effect Early
Settlement with respect to any Purchase Contracts evidenced by this Corporate
SPUS Certificate, the Holder of this Corporate SPUS Certificate shall deliver
this Corporate SPUS Certificate to the Agent at the Corporate Trust Office duly
endorsed for transfer to the Company or in blank with the form of Election to
Settle Early set forth below duly completed and accompanied by payment in the
form of immediately available funds payable to the order of the Company in an
amount (the "Early Settlement Amount") equal to (i) the product of (A) the
Stated Amount times (B) the number of Purchase Contracts with respect to which
the Holder has elected to effect Early Settlement, plus (ii) if such delivery is
made with respect to any Purchase Contracts during the period from the close of
business on any Record Date for any Payment Date to the opening of business on
such Payment Date, an amount equal to the Contract Adjustment Payments payable
on such Payment Date with respect to such Purchase Contracts. Upon Early
Settlement of Purchase Contracts by a Holder of the related Securities, the
Pledged Shares underlying such Securities shall be released from the Pledge as
provided in the Pledge Agreement and the Holder shall be entitled to receive a
number of shares of Common Stock on account of each Purchase Contract forming
part of a Corporate SPUS as to which Early Settlement is effected equal to the
Early Settlement Rate. The Early Settlement Rate shall initially be equal
to[_______] shares of Common Stock and shall be adjusted in the same manner and
at the same time as the Settlement Rate is adjusted as provided in the Purchase
Contract Agreement.
Upon registration of transfer of this Corporate SPUS Certificate, the
transferee shall be bound (without the necessity of any other action on the part
of such transferee, except as may be required by the Agent pursuant to the
Purchase Contract Agreement), under the terms of the Purchase Contract Agreement
and the Purchase Contracts evidenced hereby and the transferor shall be released
from the obligations under the Purchase Contracts evidenced by this Corporate
SPUS Certificate. The Company covenants and agrees, and the Holder, by its
acceptance hereof, likewise covenants and agrees, to be bound by the provisions
of this paragraph.
The Holder of this Corporate SPUS Certificate, by its acceptance hereof,
authorizes the Agent to enter into and perform the related Purchase Contracts
forming part of the Corporate SPUS evidenced hereby on its behalf as its
attorney-in-fact, expressly withholds any consent to the assumption (i.e.,
affirmance) of the Purchase Contracts by the Company or its trustee in the event
that the Company becomes the subject of a case under the Bankruptcy Code, agrees
to be bound by the terms and provisions thereof, covenants and agrees to perform
his obligations under such Purchase Contracts, consents to the provisions of the
Purchase Contract Agreement, authorizes the Agent to enter into and perform the
Purchase Contract Agreement and the Pledge Agreement on its behalf as its
attorney-in-fact, and consents to the Pledge of the Shares underlying this
Corporate SPUS Certificate pursuant to the Pledge Agreement. The Holder further
covenants and agrees that, to the extent and in the manner provided in the
Purchase
6
<PAGE>
Contract Agreement and the Pledge Agreement, but subject to the terms thereof,
Proceeds from the Remarketing with respect to any of the Pledged Shares or
security entitlements thereto in respect of the aggregate liquidation preference
of the Pledged Shares on the Purchase Contract Settlement Date shall be paid by
the Collateral Agent to the Company in satisfaction of such Holder's obligations
under such Purchase Contract and such Holder shall acquire no right, title or
interest in such payments.
Subject to certain exceptions, the provisions of the Purchase Contract
Agreement may be amended with the consent of the Holders of a majority of the
Purchase Contracts.
The Purchase Contracts shall for all purposes be governed by, and construed
in accordance with, the laws of the State of New York.
The Company, the Agent and its Affiliates and any agent of the Company or
the Agent may treat the Person in whose name this Corporate SPUS Certificate is
registered as the owner of the Corporate SPUS evidenced hereby for the purpose
of receiving payments of dividends payable quarterly on the Shares, receiving
payments of Contract Adjustment Payments, performance of the Purchase Contracts
and for all other purposes whatsoever, whether or not any payments in respect
thereof be overdue and notwithstanding any notice to the contrary, and neither
the Company, the Agent nor any such agent shall be affected by notice to the
contrary.
The Purchase Contracts shall not, prior to the settlement thereof, entitle
the Holder to any of the rights of a holder of shares of Common Stock.
A copy of the Purchase Contract Agreement is available for inspection at
the offices of the Agent.
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM -- as tenants in common
TEN ENT -- as tenants by the entireties
JT TEN -- as joint tenants with rights of survivorship and not as
tenants in common
UNIF GIFT MIN ACT -- ____________________________________
Custodian for
(Cust)
____________________________________
(Minor)
Under Uniform Gifts to Minors Act of
____________________________________
(State)
Additional abbreviations may also be used though not on the above list.
__________________________________________________________
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
7
<PAGE>
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
(Please insert Social Security or Taxpayer I.D. or other Identifying Number of
Assignee)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please Print or Type Name and Address Including Postal Zip Code of Assignee)
the within Corporate SPUS Certificates and all rights thereunder, hereby
irrevocably constituting and appointing ________________________________________
attorney to transfer such Corporate SPUS Certificates on the books of Dominion
Resources, Inc. with full power of substitution in the premises.
Dated: _______________________
________________________________________________
Signature
NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Corporate SPUS Certificates in every
particular, without alteration or enlargement or any change whatsoever.
Signature Guarantee: ___________________________
SETTLEMENT INSTRUCTIONS
The undersigned Holder directs that a certificate for shares of Common
Stock deliverable upon settlement on or after the Purchase Contract Settlement
Date of the Purchase Contracts underlying the number of Corporate SPUS evidenced
by this Corporate SPUS Certificate be registered in the name of, and delivered,
together with a check in payment for any fractional share, to the undersigned at
the address indicated below unless a different name and address have been
indicated below. If shares are to be registered in the name of a Person other
than the undersigned, the undersigned will pay any transfer tax payable incident
thereto.
Dated: _______________________
________________________________________________
Signature
Signature Guarantee: ___________________________
(if assigned to another person)
If shares are to be registered in the name of and delivered to a Person other
than the Holder, please
(i) print such Person's name and address and (ii) provide a guarantee of your
signature:
8
<PAGE>
REGISTERED HOLDER
Please print name and address of Registered Holder:
_____________________________________ _____________________________________
Name Name
_____________________________________ _____________________________________
Address Address
_____________________________________ _____________________________________
_____________________________________ _____________________________________
_____________________________________ _____________________________________
Social Security or other
Taxpayer Identification
Number, if any ________________________
ELECTION TO SETTLE EARLY
The undersigned Holder of this Corporate SPUS Certificate hereby
irrevocably exercises the option to effect Early Settlement in accordance with
the terms of the Purchase Contract Agreement with respect to the Purchase
Contracts underlying the number of Corporate SPUS evidenced by this Corporate
SPUS Certificate specified below. The undersigned Holder directs that a
certificate for shares of Common Stock deliverable upon such Early Settlement be
registered in the name of, and delivered, together with a check in payment for
any fractional share and any Corporate SPUS Certificate representing any
Corporate SPUS evidenced hereby as to which Early Settlement of the related
Purchase Contracts is not effected, to the undersigned at the address indicated
below unless a different name and address have been indicated below. Pledged
Shares deliverable upon such Early Settlement will be transferred in accordance
with the transfer instructions set forth below. If shares are to be registered
in the name of a Person other than the undersigned, the undersigned will pay any
transfer tax payable incident thereto.
Dated: ______________________
___________________________________
Signature
Signature Guarantee: ___________________________
Number of Securities evidenced hereby as to which Early Settlement of the
related Purchase Contracts is being elected:
9
<PAGE>
If shares of Common Stock or Corporate SPUS Certificates are to be registered in
the name of and delivered to, and Pledged Shares are to be transferred to, a
Person other than the Holder, please print such Person's name and address:
REGISTERED HOLDER
Please print name and address of Registered Holder:
_____________________________________ ____________________________________
Name Name
_____________________________________ _____________________________________
Address Address
_____________________________________ _____________________________________
_____________________________________ _____________________________________
_____________________________________ _____________________________________
Social Security or other
Taxpayer Identification
Number, if any _______________________
Transfer Instructions for Pledged Shares Transferable Upon Early Settlement
or a Termination Event:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL CERTIFICATE
The following increases or decreases in this Global Certificate have been made:
NUMBER OF AMOUNT OF AMOUNT OF
SPUS DECREASE IN INCREASE IN
EVIDENCED BY NUMBER OF NUMBER OF
THIS SPUS SPUS
GLOBAL EVIDENCED BY EVIDENCED BY
CERTIFICATE THE THE
FOLLOWING SUCH GLOBAL GLOBAL
DECREASE OR CERTIFICATE CERTIFICATE
INCREASE
DATE:
__________________________________________________________________
SIGNATURE OF AUTHORIZED OFFICER OF SECURITIES TRUSTEE OR CUSTODIAN
10
<PAGE>
EXHIBIT B
FACE OF TREASURY SPUS CERTIFICATE
"THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE PURCHASE
CONTRACT AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE DEPOSITARY"), OR A NOMINEE
OF THE DEPOSITARY. THIS CERTIFICATE IS EXCHANGEABLE FOR CERTIFICATES REGISTERED
IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE PURCHASE CONTRACT AGREEMENT AND NO
TRANSFER OF THIS CERTIFICATE (OTHER THAN A TRANSFER OF THIS CERTIFICATE 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 LIMITED CIRCUMSTANCES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN."
NO. _____ CUSIP NO. [___________]
NUMBER OF TREASURY SPUS _________
DOMINION RESOURCES, INC.
TREASURY SPUS
This Treasury SPUS Certificate certifies that Cede & Co. is the registered
Holder of the number of Treasury SPUS set forth above. Each Treasury SPUS
consists of (i) a 1/20 undivided beneficial ownership interest of a Treasury
Security having a principal amount at maturity equal to $1,000, subject to the
Pledge of such Treasury Security by such Holder pursuant to the Pledge
Agreement, and (ii) the rights and obligations of the Holder under one Purchase
Contract with Dominion Resources, Inc., a Virginia corporation (the "Company").
All capitalized terms used herein which are defined in the Purchase Contract
Agreement (as defined on the reverse hereof) have the meaning set forth therein.
Pursuant to the Pledge Agreement, the Treasury Securities constituting part
of each Treasury SPUS evidenced hereby have been pledged to the Collateral
Agent, for the benefit of the Company, to secure the obligations of the Holder
under the Purchase Contract comprising a portion of such Treasury SPUS.
Each Purchase Contract evidenced hereby obligates the Holder of this
Treasury SPUS Certificate to purchase, and the Company, to sell, on
[____________], 2002 (the "Purchase Contract Settlement Date"), at a price equal
to $50 in cash (the "Stated Amount"), a number of Common Shares, par value $0.01
("Common Stock"), of the Company equal to the Settlement Rate, unless on or
prior to the Purchase Contract Settlement Date there shall have occurred a
Termination Event or an Early Settlement with respect to the Treasury SPUS of
which such Purchase Contract is a part, all as provided in the Purchase Contract
Agreement and more fully described on the reverse hereof. The purchase price for
the shares of Common
1
<PAGE>
Stock purchased pursuant to each Purchase Contract evidenced hereby, if not paid
earlier, shall be paid on the Purchase Contract Settlement Date by application
of the Proceeds from the Treasury Securities pledged to secure the obligations
under such Purchase Contract in accordance with the terms of the Pledge
Agreement.
The Company shall pay on each Payment Date in respect of each Purchase
Contract evidenced hereby an amount (the "Contract Adjustment Payments") equal
to (a) if a Reset Transaction has not occurred, [____]% per annum of the Stated
Amount or (b) following the occurrence of a Reset Transaction, the Adjusted
Contract Adjustment Payment Rate related to such Reset Transaction until any
such succeeding Reset Transaction shall occur (computed on the basis of (i) for
any full quarterly period, a 360-day year of twelve 30-day months and (ii) for
any period shorter than a full quarterly period, a 30-day month and for periods
less than a month, the actual number of days elapsed per 30-day period), as the
case may be. Such Contract Adjustment Payments shall be payable to the Person in
whose name this Treasury SPUS Certificate (or a Predecessor Treasury SPUS
Certificate) is registered at the close of business on the Record Date for such
Payment Date.
Contract Adjustment Payments will be payable at the office of the Agent in
New York City or, at the option of the Company, by check mailed to the address
of the Person entitled thereto as such address appears on the Treasury SPUS
Register.
Reference is hereby made to the further provisions set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as
if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Agent by manual signature, this Treasury SPUS Certificate shall not be entitled
to any benefit under the Pledge Agreement or the Purchase Contract Agreement or
be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
DOMINION RESOURCES, INC.
By: _______________________________
Name:
Title:
By: _______________________________
Name:
Title:
HOLDER SPECIFIED ABOVE (as to
obligations of such Holder under the
Purchase Contracts)
2
<PAGE>
By: [___________________________],
not individually but solely as
Attorney-in-Fact of such Holder
By: ______________________________
Name:
Title:
Dated:
AGENT'S CERTIFICATE OF AUTHENTICATION
This is one of the Treasury SPUS referred to in the within-mentioned Purchase
Contract Agreement.
By: [_______________________], as
Purchase Contract Agent
By: ____________________________
Authorized Officer
(REVERSE OF TREASURY SPUS CERTIFICATE)
Each Purchase Contract evidenced hereby is governed by a Purchase Contract
Agreement, dated as of _______ [___], ____ (as may be supplemented from time to
time, the "Purchase Contract Agreement") between the Company and
[_____________________], as Purchase Contract Agent (including its successors
thereunder, herein called the "Agent"), to which the Purchase Contract Agreement
and supplemental agreements thereto reference is hereby made for a description
of the respective rights, limitations of rights, obligations, duties and
immunities thereunder of the Agent, the Company and the Holders and of the terms
upon which the Treasury SPUS Certificates are, and are to be, executed and
delivered.
Each Purchase Contract evidenced hereby obligates the Holder of this
Treasury SPUS Certificate to purchase, and the Company to sell, on the Purchase
Contract Settlement Date at a price equal to the Stated Amount (the "Purchase
Price") a number of shares of Common Stock of the Company equal to the
Settlement Rate, unless on or prior to the Purchase Contract Settlement Date,
there shall have occurred a Termination Event with respect to the Security of
which such Purchase Contract is a part or an Early Settlement shall have
occurred. The "Settlement Rate" is equal to (a) if the Applicable Market Value
(as defined below) is equal to or greater than $[_________] (the "Threshold
Appreciation Price"), [_________] shares of Common Stock per Purchase Contract,
(b) if the Applicable Market Value is less than the Threshold Appreciation Price
but is greater than $[_________], the number of shares of Common Stock per
Purchase Contract equal to the Stated Amount divided by the Applicable Market
Value and (c) if the Applicable Market Amount is less than or equal to
$[_________], then [_________] shares of Common Stock per Purchase Contract, in
each case subject to adjustment as provided in the Purchase Contract Agreement.
No fractional shares of Common Stock will be issued upon settlement of Purchase
Contracts, as provided in the Purchase Contract Agreement.
3
<PAGE>
Each Purchase Contract evidenced hereby, which is settled either through
Early Settlement or Cash Settlement, shall obligate the Holder of the related
Corporate SPUS to purchase at the Purchase Price, and the Company to sell, a
number of newly issued shares of Common Stock equal to the Early Settlement Rate
or the Settlement Rate, as applicable.
The "Applicable Market Value" means the average of the Closing Price per
share of Common Stock on each of the 20 Trading Days ending on the third Trading
Day immediately preceding the Purchase Contract Settlement Date. The "Closing
Price" of the Common Stock on any date of determination means (i) the closing
sale price (or, if no closing price is reported, the last reported sale price)
of the Common Stock on the Nasdaq National Market on such date, (ii) if the
Common Stock is not listed for trading on the Nasdaq National Market on any such
date, the closing sale price as reported in the composite transactions for the
principal United States securities exchange on which the Common Stock is so
listed, (iii) if the Common Stock is not so reported, the last quoted bid price
for the Common Stock in the over-the-counter market as reported by the National
Quotation Bureau or similar organization or (iv) if such bid price is not
available, the average of the mid-point of the last bid and ask prices of the
Common Stock on such date from at least three nationally recognized independent
investment banking firms retained for this purpose by the Company. A "Trading
Day" means a day on which the Common Stock (A) is not suspended from trading on
any national or regional securities exchange or association or over-the-counter
market at the close of business and (B) has traded at least once on the national
or regional securities exchange or association or over-the-counter market that
is the primary market for the trading of the Common Stock.
In accordance with the terms of the Purchase Contract Agreement, the Holder
of this Corporate SPUS Certificate may pay the Purchase Price for the shares of
Common Stock purchased pursuant to each Purchase Contract evidenced hereby by
effecting a Cash Settlement or an Early Settlement or a remarketing of the
related Pledged Shares. A Holder of Corporate SPUS who does not effect, on or
prior to 11:00 a.m. New York City time on the fifth Business Day immediately
preceding the Purchase Contract Settlement Date, an effective Cash Settlement or
an Early Settlement, shall pay the Purchase Price for the shares of Common Stock
to be issued under the related Purchase Contract from the proceeds of the sale
of the Pledged Treasury Securities.
The Company shall not be obligated to issue any shares of Common Stock in
respect of a Purchase Contract or deliver any certificates therefor to the
Holder unless it shall have received payment of the aggregate purchase price for
the shares of Common Stock to be purchased thereunder in the manner herein set
forth.
Each Purchase Contract evidenced hereby and all obligations and rights of
the Company and the Holder thereunder shall terminate if a Termination Event
shall occur. Upon the occurrence of a Termination Event, the Company shall give
written notice to the Agent and to the Holders, at their addresses as they
appear in the Corporate SPUS Register. Upon and after the occurrence of a
Termination Event, the Collateral Agent shall release the Pledged Share forming
a part of each Corporate SPUS from the Pledge. A Corporate SPUS shall thereafter
represent the right to receive the Share forming a part of such Corporate SPUS
in accordance with the terms of the Purchase Contract Agreement and the Pledge
Agreement.
The Treasury SPUS Certificates are issuable only in registered form and
only in denominations of a single Treasury SPUS and any integral multiple
thereof. The transfer of any Treasury SPUS Certificate will be registered and
Treasury SPUS Certificates may be exchanged as provided in the Purchase Contract
Agreement. The Treasury SPUS Registrar may require a Holder, among other things,
to furnish appropriate endorsements and transfer documents permitted by the
Purchase Contract Agreement. No service charge shall be required for any such
registration of transfer or exchange, but the Company and the Agent may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith. A Holder who elects to substitute Shares for
Treasury Securities, thereby recreating Corporate SPUS, shall be responsible for
any fees or expenses associated therewith. Except as provided in the Purchase
Contract Agreement, for so long as the Purchase Contract underlying a Treasury
SPUS remains in effect, such Treasury SPUS shall not be separable into its
constituent parts, and the rights and obligations of
4
<PAGE>
the Holder of such Treasury SPUS in respect of the Treasury Security and the
Purchase Contract constituting such Treasury SPUS may be transferred and
exchanged only as a Treasury SPUS. A Holder of Treasury SPUS may recreate
Corporate SPUS by delivering to the Collateral Agent Shares with a liquidation
preference equal to the aggregate principal amount at maturity of the Pledged
Treasury Securities in exchange for the release of such Pledged Treasury
Securities in accordance with the terms of the Purchase Contract Agreement and
the Pledge Agreement. From and after such substitution, the Holder's Security
shall be referred to as an "Corporate SPUS." Such substitution may cause the
equivalent aggregate principal amount of this Certificate to be increased or
decreased; PROVIDED, HOWEVER, this Treasury SPUS Certificate shall not represent
more than ____ Treasury SPUS. All such adjustments to the equivalent aggregate
principal amount of this Treasury SPUS Certificate shall be duly recorded by
placing an appropriate notation on the Schedule attached hereto.
A Holder of a Corporate SPUS may recreate a Treasury SPUS by delivering to
the Collateral Agent Treasury Securities in an aggregate principal amount equal
to the aggregate liquidation preference of the Pledged Shares in exchange for
the release of such Pledged Shares in accordance with the terms of the Purchase
Contract Agreement and the Pledge Agreement. Any such recreation of a Treasury
SPUS may be effected only in multiples of 20 Corporate SPUS for 20 Treasury
SPUS.
The Company shall pay, on each Payment Date, the Contract Adjustment
Payments payable in respect of each Purchase Contract to the Person in whose
name the Treasury SPUS Certificate evidencing such Purchase Contract is
registered at the close of business on the Record Date for such Payment Date.
Contract Adjustment Payments will be payable at the office of the Agent in New
York City or, at the option of the Company, by check mailed to the address of
the Person entitled thereto at such address as it appears on the Treasury SPUS
Register.
The Purchase Contracts and all obligations and rights of the Company and
the Holders thereunder, including, without limitation, the rights of the Holders
to receive and the obligation of the Company to pay Contract Adjustment
Payments, shall immediately and automatically terminate, without the necessity
of any notice or action by any Holder, the Agent or the Company, if, on or prior
to the Purchase Contract Settlement Date, a Termination Event shall have
occurred. Upon the occurrence of a Termination Event, the Company shall promptly
but in no event later than two Business Days thereafter give written notice to
the Agent, the Collateral Agent and the Holders, at their addresses as they
appear in the Treasury SPUS Register. Upon the occurrence of a Termination
Event, the Collateral Agent shall release the Treasury Securities from the
Pledge in accordance with the provisions of the Pledge Agreement.
Subject to and upon compliance with the provisions of the Purchase Contract
Agreement, at the option of the Holder thereof, Purchase Contracts underlying
Securities may be settled early (an "Early Settlement") as provided in the
Purchase Contract Agreement. In order to exercise the right to effect Early
Settlement with respect to any Purchase Contracts evidenced by this Treasury
SPUS the Holder of this Treasury SPUS Certificate shall deliver this Treasury
SPUS Certificate to the Agent at the Corporate Trust Office duly endorsed for
transfer to the Company or in blank with the form of Election to Settle Early
set forth below duly completed and accompanied by payment in the form of
immediately available funds payable to the order of the Company in an amount
(the "Early Settlement Amount") equal to (i) the product of (A) $50 times (B)
the number of Purchase Contracts with respect to which the Holder has elected to
effect Early Settlement, plus (ii) if such delivery is made with respect to any
Purchase Contracts during the period from the close of business on any Record
Date for any Payment Date to the opening of business on such Payment Date, an
amount equal to the Contract Adjustment Payments payable, if any, on such
Payment Date with respect to such Purchase Contracts. Upon Early Settlement of
Purchase Contracts by a Holder of the related Securities, the Pledged Treasury
Securities underlying such Securities shall be released from the Pledge as
provided in the Pledge Agreement and the Holder shall be entitled to receive a
number of shares of Common Stock on account of each Purchase Contract forming
part of a Treasury SPUS as to which Early Settlement is effected equal to
[_________] shares of Common Stock per Purchase Contract (the "Early Settlement
Rate"). The Early Settlement Rate shall be adjusted in the same manner and at
the same time as the Settlement Rate is adjusted as provided in the Purchase
Contract Agreement.
5
<PAGE>
Upon registration of transfer of this Treasury SPUS Certificate, the
transferee shall be bound (without the necessity of any other action on the part
of such transferee, except as may be required by the Agent pursuant to the
Purchase Contract Agreement), under the terms of the Purchase Contract Agreement
and the Purchase Contracts evidenced hereby and the transferor shall be released
from the obligations under the Purchase Contracts evidenced by this Treasury
SPUS Certificate. The Company covenants and agrees, and the Holder, by its
acceptance hereof, likewise covenants and agrees, to be bound by the provisions
of this paragraph.
The Holder of this Treasury SPUS Certificate, by its acceptance hereof,
authorizes the Agent to enter into and perform the related Purchase Contracts
forming part of the Treasury SPUS evidenced hereby on its behalf as its
attorney-in-fact, expressly withholds any consent to the assumption (i.e.,
affirmance) of the Purchase Contracts by the Company or its trustee in the event
that the Company becomes the subject of a case under the Bankruptcy Code, agrees
to be bound by the terms and provisions thereof, covenants and agrees to perform
its obligations under such Purchase Contracts, consents to the provisions of the
Purchase Contract Agreement, authorizes the Agent to enter into and perform the
Purchase Contract Agreement and the Pledge Agreement on its behalf as its
attorney-in-fact, and consents to the Pledge of the Treasury Securities
underlying this Treasury SPUS Certificate pursuant to the Pledge Agreement. The
Holder further covenants and agrees, that, to the extent and in the manner
provided in the Purchase Contract Agreement and the Pledge Agreement, but
subject to the terms thereof, payments in respect of the aggregate principal
amount of the Pledged Treasury Securities on the Purchase Contract Settlement
Date shall be paid by the Collateral Agent to the Company in satisfaction of
such Holder's obligations under such Purchase Contract and such Holder shall
acquire no right, title or interest in such payments.
Subject to certain exceptions, the provisions of the Purchase Contract
Agreement may be amended with the consent of the Holders of a majority of the
Purchase Contracts.
The Purchase Contracts shall for all purposes be governed by, and construed
in accordance with, the laws of the State of New York.
The Company, the Agent and its Affiliates and any agent of the Company or
the Agent may treat the Person in whose name this Treasury SPUS Certificate is
registered as the owner of the Treasury SPUS evidenced hereby for the purpose of
receiving payments of interest on the Treasury Securities, receiving payments of
Contract Adjustment Payments, performance of the Purchase Contracts and for all
other purposes whatsoever, whether or not any payments in respect thereof be
overdue and notwithstanding any notice to the contrary, and neither the Company,
the Agent nor any such agent shall be affected by notice to the contrary.
The Purchase Contracts shall not, prior to the settlement thereof, entitle
the Holder to any of the rights of a holder of shares of Common Stock.
A copy of the Purchase Contract Agreement is available for inspection at
the offices of the Agent.
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM -- as tenants in common
TEN ENT -- as tenants by the entireties
JT TEN -- as joint tenants with rights of survivorship and not as
tenants in common
UNIF GIFT MIN ACT -- ________________________________
6
<PAGE>
Custodian for
(Cust)
____________________________________
(Minor)
Under Uniform Gifts to Minors Act of
____________________________________
(State)
Additional abbreviations may also be used though not on the above list.
______________________________________________________________
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
(Please insert Social Security or Taxpayer I.D. or other Identifying Number of
Assignee)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please Print or Type Name and Address Including Postal Zip Code of Assignee)
the within Treasury SPUS Certificates and all rights thereunder, hereby
irrevocably constituting and appointing ________________________________________
attorney to transfer such Treasury SPUS Certificates on the books of Dominion
Resources, Inc. with full power of substitution in the premises.
Dated: ___________________
________________________________________________
Signature
NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Treasury SPUS Certificates in every
particular, without alteration or enlargement or any change whatsoever.
Signature Guarantee: ___________________________________
SETTLEMENT INSTRUCTIONS
The undersigned Holder directs that a certificate for shares of Common
Stock deliverable upon settlement on or after the Purchase Contract Settlement
Date of the Purchase Contracts underlying the number of Treasury SPUS evidenced
by this Treasury SPUS Certificate be registered in the name of, and delivered,
together with a check in payment for any fractional share, to the undersigned at
the address
7
<PAGE>
indicated below unless a different name and address have been indicated below.
If shares are to be registered in the name of a Person other than the
undersigned, the undersigned will pay any transfer tax payable incident thereto.
Dated: _______________________
_______________________________________
Signature
Signature Guarantee: __________________
(if assigned to another person)
If shares are to be registered in the name of and delivered to a Person other
than the Holder, please (i) print such Person's name and address and (ii)
provide a guarantee of your signature:
REGISTERED HOLDER
Please print name and address of Registered Holder:
_____________________________________ _____________________________________
Name Name
_____________________________________ _____________________________________
Address Address
_____________________________________ _____________________________________
_____________________________________ _____________________________________
_____________________________________ _____________________________________
Social Security or other
Taxpayer Identification
Number, if any _______________________
8
<PAGE>
ELECTION TO SETTLE EARLY
The undersigned Holder of this Treasury SPUS Certificate irrevocably
exercises the option to effect Early Settlement in accordance with the terms of
the Purchase Contract Agreement with respect to the Purchase Contracts
underlying the number of Treasury SPUS evidenced by this Treasury SPUS
Certificate specified below. The option to effect Early Settlement may be
exercised only with respect to Purchase Contracts underlying Treasury SPUS with
an aggregate Stated Amount equal to $1,000 or an integral multiple thereof. The
undersigned Holder directs that a certificate for shares of Common Stock
deliverable upon such Early Settlement be registered in the name of, and
delivered, together with a check in payment for any fractional share and any
Treasury SPUS Certificate representing any Treasury SPUS evidenced hereby as to
which Early Settlement of the related Purchase Contracts is not effected, to the
undersigned at the address indicated below unless a different name and address
have been indicated below. Pledged Treasury Securities deliverable upon such
Early Settlement will be transferred in accordance with the transfer
instructions set forth below. If shares are to be registered in the name of a
Person other than the undersigned, the undersigned will pay any transfer tax
payable incident thereto.
Dated: ______________________
______________________________________
Signature
Signature Guarantee: _____________________________________
Number of Securities evidenced hereby as to which Early Settlement of the
related Purchase Contracts is being elected:
If shares of Common Stock of Treasury SPUS Certificates are to be registered in
the name of and delivered to and Pledged Treasury Securities are to be
transferred to a Person other than the Holder, please print such Person's name
and address:
REGISTERED HOLDER
Please print name and address of Registered Holder:
_____________________________________ _____________________________________
Name Name
_____________________________________ _____________________________________
Address Address
_____________________________________ _____________________________________
_____________________________________ _____________________________________
_____________________________________ _____________________________________
9
<PAGE>
Social Security or other Taxpayer Identification Number, if any
_____________________________________
Transfer Instructions for Pledged Treasury Securities Transferable Upon Early
Settlement or a Termination Event:
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL CERTIFICATE
The following increases or decreases in this Global Certificate have been made:
NUMBER OF AMOUNT OF AMOUNT OF
SPUS DECREASE IN INCREASE IN
EVIDENCED BY NUMBER OF NUMBER OF
THIS SPUS SPUS
GLOBAL EVIDENCED BY EVIDENCED BY
CERTIFICATE THE THE
FOLLOWING SUCH GLOBAL GLOBAL
DECREASE OR CERTIFICATE CERTIFICATE
INCREASE
DATE:
__________________________________________________________________
SIGNATURE OF AUTHORIZED OFFICER OF SECURITIES TRUSTEE OR CUSTODIAN
10
<PAGE>
EXHIBIT C
INSTRUCTION TO PURCHASE CONTRACT AGENT
[____________________________]
Attention:
Re: ________ SPUS of Dominion Resources, Inc. (the "Company")
The undersigned Holder hereby notifies you that it has delivered to
[_________________], as Securities Intermediary, for credit to the Collateral
Account, $______ aggregate liquidation preference of [Shares] [Treasury
Securities] in exchange for the [Pledged Shares] [Pledged Treasury Securities]
held in the Collateral Account, in accordance with the Pledge Agreement, dated
as of _______ [___], ____ (the "Pledge Agreement"; unless otherwise defined
herein, terms defined in the Pledge Agreement are used herein as defined
therein), among you, the Company, the Collateral Agent and the Securities
Intermediary. The undersigned Holder has paid all applicable fees relating to
such exchange. The undersigned Holder hereby instructs you to instruct the
Collateral Agent to release to you on behalf of the undersigned Holder the
[Pledged Shares] [Pledged Treasury Securities] related to such [Corporate SPUS]
[Treasury SPUS].
Date: ________________
______________________________________
Signature
Signature Guarantee:__________________
Please print name and address of Registered Holder:
______________________________________
Name
______________________________________
Social Security or other Taxpayer
Identification Number, if any
Address
______________________________________
______________________________________
______________________________________
1
<PAGE>
EXHIBIT D
NOTICE FROM PURCHASE CONTRACT AGENT
TO HOLDERS
(Transfer of Collateral upon Occurrence of a Termination Event)
[HOLDER]
____________________
____________________
Attention:
Telecopy: __________
Re: __________ SPUS of DOMINION RESOURCES, INC. (the "Company")
Please refer to the Purchase Contract Agreement, dated as of _______ [___],
____ (the "Purchase Contract Agreement"; unless otherwise defined herein, terms
defined in the Purchase Contract Agreement are used herein as defined therein),
among the Company and the undersigned, as Purchase Contract Agent and as
attorney-in-fact for the holders of SPUS from time to time.
We hereby notify you that a Termination Event has occurred and that [the
Shares][the Treasury Securities] underlying your ownership interest in _____
[Corporate SPUS][Treasury SPUS] have been released and are being held by us for
your account pending receipt of transfer instructions with respect to such
[Shares][Treasury Securities] (the "Released Securities").
Pursuant to Section 3.15 of the Purchase Contract Agreement, we hereby
request written transfer instructions with respect to the Released Securities.
Upon receipt of your instructions and upon transfer to us of your [Corporate
SPUS][Treasury SPUS] effected through book-entry or by delivery to us of your
[Corporate SPUS Certificate][Treasury SPUS Certificate], we shall transfer the
Released Securities by book-entry transfer, or other appropriate procedures, in
accordance with your instructions. In the event you fail to effect such transfer
or delivery, the Released Securities and any [dividends] [interest] thereon,
shall be held in our name, or a nominee in trust for your benefit, until such
time as such [Corporate SPUS][Treasury SPUS] are transferred or your [Corporate
SPUS Certificate][Treasury SPUS Certificate] is surrendered or satisfactory
evidence is provided that your [Corporate SPUS Certificate][Treasury SPUS
Certificate] has been destroyed, lost or stolen, together with any
indemnification that we or the Company may require.
Date: ________________________
By: [______________________________]
______________________________
Name:
Title:
1
<PAGE>
EXHIBIT E
NOTICE TO SETTLE BY SEPARATE CASH
[_________________________]
Attention:
Re: ________ SPUS of Dominion Resources, Inc. (the "Company")
The undersigned Holder hereby irrevocably notifies you in accordance with
Section 5.4 of the Purchase Contract Agreement, dated as of _______ [___], ____
(the "Purchase Contract Agreement"; unless otherwise defined herein, terms
defined in the Purchase Contract Agreement are used herein as defined therein),
between the Company and yourselves, as Purchase Contract Agent and as Attorney-
in-Fact for the Holders of the Purchase Contracts, that such Holder has elected
to pay to the Securities Intermediary for deposit in the Collateral Account, on
or prior to 11:00 a.m. New York City time, on the [fifth Business Day][Business
Day] immediately preceding the Purchase Contract Settlement Date (in lawful
money of the United States by certified or cashiers' check or wire transfer, in
immediately available funds), $______ as the Purchase Price for the shares of
Common Stock issuable to such Holder by the Company under the related Purchase
Contract on the Purchase Contract Settlement Date. The undersigned Holder hereby
instructs you to notify promptly the Collateral Agent of the undersigned
Holder's election to make such cash settlement with respect to the Purchase
Contracts related to such Holder's [Corporate SPUS] [Treasury SPUS].
Date: _______________________
________________________________________
Signature
Signature Guarantee:____________________
Please print name and address of Registered Holder:
1
<PAGE>
EXHIBIT F
NOTICE FROM PURCHASE CONTRACT AGENT
TO COLLATERAL AGENT
(Payment of Purchase Contract Settlement Price)
[____________________________
Attention:
Telecopy:
[____________________________
Attention:
Telecopy:
Re: __________ SPUS of Dominion Resources, Inc. (the "Company")
Please refer to the Purchase Contract Agreement dated as of _______ [___],
____ (the "Purchase Contract Agreement"; unless otherwise defined herein, terms
defined in the Purchase Contract Agreement are used herein as defined therein),
between the Company and the undersigned, as Purchase Contract Agent and as
attorney-in-fact for the holders of SPUS from time to time.
In accordance with Section 5.4 of the Purchase Contract Agreement and,
based on instructions and Cash Settlements received from Holders of Corporate
SPUS as of 11:00 a.m, [DATE (FIFTH BUSINESS DAY IMMEDIATELY PRECEDING THE
PURCHASE CONTRACT SETTLEMENT DATE)], we hereby notify you that [_____ Shares]
are to be tendered for purchase in the Remarketing.
Date: ______________________
By: [___________________________]
____________________________
Name:
Title:
1
<PAGE>
================================================================================
Exhibit 4(xvi)
DOMINION RESOURCES, INC.
and
[___________________________], as Collateral Agent
and
[___________________________], as Securities Intermediary
and
[___________________________], as Purchase Contract Agent
PLEDGE AGREEMENT
Dated as of _______ [ ], ____
================================================================================
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
Article I. Definitions......................................................................... 1
Article II Pledge.............................................................................. 5
2.1 Pledge.............................................................................. 5
2.2 Control; Financing Statement........................................................ 5
2.3 Termination......................................................................... 5
Article III Distributions on Pledged Collateral................................................. 5
3.1 Income Distributions................................................................ 5
3.2 Principal Payments Following Termination Event...................................... 5
3.3 Principal Payments Prior To or On Purchase Contract Settlement Date................. 6
3.4 Payments to Purchase Contract Agent................................................. 6
3.5 Assets Not Properly Released........................................................ 6
Article IV Control............................................................................. 6
4.1 Establishment of Collateral Account................................................. 6
4.2 Treatment as Financial Assets....................................................... 7
4.3 Sole Control by Collateral Agent.................................................... 7
4.4 Securities Intermediary's Location.................................................. 7
4.5 No Other Claims..................................................................... 7
4.6 Investment and Release.............................................................. 7
4.7 Statements and Confirmations........................................................ 8
4.8 Tax Allocations..................................................................... 8
4.9 No Other Agreements................................................................. 8
4.10 Powers Coupled With An Interest..................................................... 8
Article V Initial Deposit; Establishment of Treasury SPUS and Reestablishment of
Corporate SPUS...................................................................... 8
5.1 Initial Deposit of Shares........................................................... 8
5.2 Establishment of Treasury SPUS...................................................... 8
5.3 Reestablishment of Corporate SPUS................................................... 9
5.4 Termination Event................................................................... 10
5.5 Cash Settlement..................................................................... 11
5.6 Early Settlement.................................................................... 12
5.7 Application of Proceeds Settlement.................................................. 12
Article VI Voting Rights of Pledged Shares..................................................... 13
Article VII Rights and Remedies................................................................. 14
7.1 Rights and Remedies of the Collateral Agent......................................... 14
7.2 Substitutions....................................................................... 15
Article VIII Representations and Warranties; Covenants........................................... 15
8.1 Representations and Warranties...................................................... 15
</TABLE>
<PAGE>
<TABLE>
<S> <C>
8.2 Covenants........................................................................... 16
Article IX The Collateral Agent and the Securities Intermediary................................ 16
9.1 Appointment, Powers and Immunities.................................................. 16
9.2 Instructions of the Company......................................................... 17
9.3 Reliance by Collateral Agent and Securities Intermediary............................ 17
9.4 Rights in Other Capacities.......................................................... 17
9.5 Non-Reliance on Collateral Agent and Securities Intermediary........................ 18
9.6 Compensation and Indemnity.......................................................... 18
9.7 Failure to Act...................................................................... 18
9.8 Resignation of Collateral Agent and Securities Intermediary......................... 19
9.9 Right to Appoint Agent or Advisor................................................... 20
9.10 Survival............................................................................ 20
9.11 Exculpation......................................................................... 20
Article X Amendment........................................................................... 20
10.1 Amendment Without Consent of Holders................................................ 20
10.2 Amendment with Consent of Holders................................................... 21
10.3 Execution of Amendments............................................................. 22
10.4 Effect of Amendments................................................................ 22
10.5 Reference to Amendments............................................................. 22
Article XI Miscellaneous....................................................................... 22
11.1 No Waiver........................................................................... 22
11.2 Governing Law....................................................................... 22
11.3 Notices............................................................................. 23
11.4 Successors and Assigns.............................................................. 23
11.5 Counterparts........................................................................ 23
11.6 Severability........................................................................ 23
11.7 Expenses, etc....................................................................... 23
11.8 Security Interest Absolute.......................................................... 24
</TABLE>
EXHIBIT A Instruction from Purchase Contract Agent to Collateral Agent
(Establishment of Treasury SPUS)
EXHIBIT B Instruction from Collateral Agent to Securities Intermediary
(Establishment of Treasury SPUS)
EXHIBIT C Instruction from Purchase Contract Agent to Collateral Agent
(Reestablishment of Corporate SPUS)
EXHIBIT D Instruction from Collateral Agent to Securities Intermediary
(Reestablishment of Corporate SPUS)
EXHIBIT E Notice of Cash Settlement from the Securities Intermediary to the
Purchase Contract Agent.
ii
<PAGE>
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT is dated as of _______ [__], ____ among DOMINION
RESOURCES, INC., a Virginia corporation (the "Company"),
[________________________], not individually but solely as collateral agent (in
such capacity, together with its successors in such capacity, the "Collateral
Agent"), [________________________], not individually but solely in its capacity
as a securities intermediary with respect to the Collateral Account (in such
capacity, together with its successors in such capacity, the "Securities
Intermediary"), and [____________________], a [___________________], not
individually but solely as purchase contract agent and as attorney-in-fact of
the Holders from time to time of the Securities (in such capacity, together with
its successors in such capacity, the "Purchase Contract Agent") under the
Purchase Contract Agreement (as defined herein).
RECITALS
The Company and the Purchase Contract Agent are parties to the Purchase
Contract Agreement, dated as of the date hereof (as modified and supplemented
and in effect from time to time, the "Purchase Contract Agreement"), pursuant to
which there may be issued up to [insert number] SPUS (the "Securities").
Each Corporate SPUS, at issuance, consists of a unit comprised of (a) one
stock purchase contract (each, a "Purchase Contract") under which (i) the Holder
will purchase from the Company on [_________], 20__, for an amount equal to
[$50] (the "Stated Amount"), a number of shares of Common Stock equal to the
Settlement Rate and (ii) the Company will pay the Holder Contract Adjustment
Payments, if any, and (b) a share of Series ___ Preferred Stock of the Company
(each a "Share"), having a liquidation preference equal to the Stated Amount and
being subject to mandatory redemption on [________], 20__.
Pursuant to the terms of the Purchase Contract Agreement and the Purchase
Contracts, the Holders of the Securities have irrevocably authorized the
Purchase Contract Agent, as attorney-in-fact of such Holders, among other
things, to execute and deliver this Agreement on behalf of such Holders and to
grant the pledge provided herein of the Collateral Account to secure the
Obligations.
Accordingly, the Company, the Collateral Agent, the Securities Intermediary
and the Purchase Contract Agent, on its own behalf and as attorney-in-fact of
the Holders from time to time of the Securities, agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 For all purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
<PAGE>
(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) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Article, Section, Exhibit or other subdivision;
(c) the following terms which are defined in the Code shall have the
meanings set forth therein: "certificated security," "control," "financial
asset," "entitlement order," "securities account" and "security entitlement";
(d) the following terms have the meanings assigned to them in the
Purchase Contract Agreement: (1) Act, (2) Agent, (3) Cash Settlement, (4)
Certificate, (5) Common Stock, (6) Company Resolution, (7) Contract Adjustment
Payments, (8) Corporate SPUS, (9) Early Settlement, (10) Early Settlement
Amount, (11) Early Settlement Date, (12) Failed Remarketing, (13) Holder, (14)
Opinion of Counsel, (15) Outstanding Securities, (16) Purchase Contract, (17)
Purchase Contract Settlement Date, (18) Purchase Price, (19) Remarketing Agent,
(20) Remarketing Agreement, (21) Settlement Rate, (22) Shares, (23) SPUS, (24)
Termination Event, (25) Treasury SPUS and (26) Underwriting Agreement; and
(e) the following terms have the meanings given to them in this
clause (e):
"Agreement" means this Pledge Agreement, as the same may be amended,
modified or supplemented from time to time.
"Bankruptcy Code" means title 11 of the United States Code, or any other
law of the United States that from time to time provides a uniform system of
bankruptcy laws.
"Business Day" means any day other than (i) a Saturday or Sunday or a day
on which banking institutions in New York City are authorized or required by law
or executive order to remain closed for business.
"Cash" means any coin or currency of the United States as at the time shall
be legal tender for payment of public and private debts.
"Code" means the Uniform Commercial Code as in effect in the State of New
York from time to time.
"Collateral Account" means the collective reference to (1) Securities
Account No. [_____] entitled "[__________________], as Collateral Agent,
Securities Account ([___________])" maintained by the Securities Intermediary
for the Purchase Contract Agent on behalf of and as attorney-in-fact for the
Holders, (2) all investment property and other financial assets from time to
time credited to the Collateral Account, including, without limitation, (A)
Shares and security entitlements relating thereto which are a component of the
Corporate SPUS from time to time, (B) any Treasury Securities and security
entitlements relating thereto delivered from time to time upon establishment of
Treasury SPUS in accordance with Section 5.2 hereof and (C) payments made by
Holders pursuant to Section 5.5 hereof (collectively, the
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"Collateral"), (3) all Proceeds of any of the foregoing (whether such Proceeds
arise before or after the commencement of any proceeding under any applicable
bankruptcy, insolvency or other similar law, by or against the pledgor or with
respect to the pledgor) and (4) all powers and rights now owned or hereafter
acquired under or with respect to the Collateral Account.
"Company" means the Person named as the "Company" in the first paragraph of
this instrument until a successor shall have become such, and thereafter
"Company" shall mean such successor.
"Obligations" means, with respect to each Holder, the collective reference
to all obligations and liabilities of such Holder under such Holder's Purchase
Contract and this Agreement or any other document made, delivered or given in
connection herewith or therewith, in each case whether on account of principal,
interest (including, without limitation, interest accruing before and after the
filing of any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to such Holder, whether or not a
claim for post-filing or post-petition interest is allowed in such proceeding),
fees, indemnities, costs, expenses or otherwise (including, without limitation,
all fees and disbursements of counsel to the Company or the Collateral Agent or
the Securities Intermediary that are required to be paid by the Holder pursuant
to the terms of any of the foregoing agreements).
"Permitted Investments" means any one of the following which shall mature
not later than the next succeeding Business Day: (i) any evidence of
indebtedness with an original maturity of 365 days or less issued, or directly
and fully guaranteed or insured, by the United States of America or any agency
or instrumentality thereof (provided that the full faith and credit of the
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United States of America is pledged in support of the timely payment thereof or
such indebtedness constitutes a general obligation of it); (ii) deposits,
certificates of deposit or acceptances with an original maturity of 365 days or
less of any institution which is a member of the Federal Reserve System having
combined capital and surplus and undivided profits of not less than $200.0
million at the time of deposit; (iii) investments with an original maturity of
365 days or less of any Person that are fully and unconditionally guaranteed by
a bank referred to in clause (ii); (iv) repurchase agreements and reverse
repurchase agreements relating to marketable direct obligations issued or
unconditionally guaranteed by the United States Government or issued by any
agency thereof and backed as to timely payment by the full faith and credit of
the United States Government; (v) investments in commercial paper, other than
commercial paper issued by the Company or its affiliates, of any corporation
incorporated under the laws of the United States or any State thereof, which
commercial paper has a rating at the time of purchase at least equal to "A-1" by
Standard & Poor's Ratings Services ("S&P") or at least equal to "P-1" by Moody's
Investors Service, Inc. ("Moody's"); and (vi) investments in money market funds
registered under the Investment Company Act of 1940, as amended, rated in the
highest applicable rating category by S&P or Moody's.
"Person" means any legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint-stock company, limited
liability company, trust, unincorporated organization or government or any
agency or political subdivision thereof.
"Pledge" means the lien and security interest created by this Agreement.
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"Pledged Shares" means the Shares and security entitlements with respect
thereto from time to time credited to the Collateral Account and not then
released from the Pledge.
"Pledged Treasury Securities" means Treasury Securities and security
entitlements with respect thereto from time to time credited to the Collateral
Account and not then released from the Pledge.
"Proceeds" has the meaning ascribed thereto in the Code and includes,
without limitation, all interest, dividends, cash, instruments, securities,
financial assets (as defined in ss. 8-102(a)(9) of the Code) and other property
received, receivable or otherwise distributed upon the sale, exchange,
collection or disposition of any financial assets from time to time held in the
Collateral Account.
"Purchase Contract Agent" has the meaning specified in the paragraph
preceding the recitals of this Agreement.
"Trades" means the Treasury/Reserve Automated Debt Entry System maintained
by the Federal Reserve Bank of New York pursuant to the TRADES Regulations.
"TRADES Regulations" means the regulations of the United States Department
of the Treasury, published at 31 C.F.R. Part 357, as amended from time to time.
Unless otherwise defined herein, all terms defined in the TRADES Regulations are
used herein as therein defined.
"Transfer" means:
(1) in the case of certificated securities in registered form,
delivery as provided in ss. 8-301(a) of the Code, endorsed to the
transferee or in blank by an effective endorsement;
(2) in the case of Treasury Securities, registration of the
transferee as the owner of such Treasury Securities on TRADES; and in
the case of security entitlements, including, without limitation,
security entitlements with respect to Treasury Securities, a
securities intermediary indicating by book entry that such security
entitlement has been credited to the transferee's securities account.
"Treasury Security" means a zero-coupon U.S. Treasury Security (CUSIP
Number ________) which are the principal strips of the __% U.S. Treasury
Securities which mature on _____ ___, 20___.
"Value" with respect to any item of Collateral on any date means, as to (i)
Cash, the face amount thereof, (ii) Treasury Securities, the aggregate principal
amount thereof at maturity and (iii) Shares, [the liquidation preference
thereof].
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ARTICLE II
PLEDGE
Section 2.1 Pledge.
Each Holder, acting through the Purchase Contract Agent as such Holder's
attorney-in-fact, hereby pledges and grants to the Collateral Agent, as agent of
and for the benefit of the Company, a continuing first priority security
interest in and to, and a lien upon and right of set off against, all of such
Holder's right, title and interest in and to the Collateral Account to secure
the prompt and complete payment and performance when due (whether at stated
maturity, by acceleration or otherwise) of the Obligations. The Collateral Agent
shall have all of the rights, remedies and recourses with respect to the
Collateral afforded a secured party by the Code, in addition to, and not in
limitation of, the other rights, remedies and recourses afforded to the
Collateral Agent by this Agreement.
Section 2.2 Control; Financing Statement.
(a) The Collateral Agent shall have control of the Collateral
Account pursuant to the provisions of Article IV of this Agreement.
(b) On the date of initial issuance of the Securities, the
Purchase Contract Agent shall deliver to the Collateral Agent a financing
statement prepared by the Company for filing in the Office of the Secretary of
State of the State of [New York], signed by the Purchase Contract Agent, as
attorney-in-fact for the Holders, as debtors, and describing the Collateral.
Section 2.3 Termination.
This Agreement and the Pledge created hereby shall terminate, with respect
to a Holder, upon the satisfaction of such Holder's Obligations. Upon
termination, the Securities Intermediary shall Transfer the Collateral to the
Purchase Contract Agent for distribution to the Holders in accordance with their
respective interests, free and clear of any lien, pledge or security interest
created hereby.
ARTICLE III
DISTRIBUTIONS ON PLEDGED COLLATERAL.
Section 3.1 Income Distributions.
All income distributions, including dividends, received by the Securities
Intermediary on account of the Shares or Permitted Investments from time to time
held in the Collateral Account shall be distributed to the Purchase Contract
Agent for the benefit of the applicable Holders as provided in the Purchase
Contracts.
Section 3.2 Principal Payments Following Termination Event.
All payments received by the Securities Intermediary following a
Termination Event of (1) the principal amount of Pledged Shares or securities
entitlements thereto or (2) the principal
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amount of the Pledged Treasury Securities or securities entitlements thereto
shall be distributed to the Purchase Contract Agent for the benefit of the
Holders for distribution to such Holders in accordance with their respective
interests.
Section 3.3 Principal Payments Prior To Or On Purchase Contract Settlement
Date.
(a) Subject to the provisions of Section 7.2, and except as
provided in clause 3.3(b) below, if no Termination Event shall have occurred,
all payments received by the Securities Intermediary of (1) the liquidation
preference with respect to the Pledged Shares or security entitlements thereto
or (2) the principal amount of Pledged Treasury Securities or security
entitlements thereto shall be held and invested in Permitted Investments until
the Purchase Contract Settlement Date and on the Purchase Contract Settlement
Date distributed to the Company as provided in Section 5.7 hereof. Any balance
remaining in the Collateral Account shall be distributed to the Purchase
Contract Agent for the benefit of the applicable Holders for distribution to
such Holders in accordance with their respective interests.
(b) All payments received by the Securities Intermediary of (1)
the liquidation preference of Shares or security entitlements thereto or (2) the
principal amount of Treasury Securities or security entitlements thereto that in
each case have been released from the Pledge shall be distributed to the
Purchase Contract Agent for the benefit of the Holders to be distributed to such
Holders in accordance with their respective interests.
Section 3.4 Payments To Purchase Contract Agent.
Payments to the Purchase Contract Agent hereunder shall be made to the
account designated by the Purchase Contract Agent for such purpose not later
than 12:00 p.m., New York City time, on the Business Day such payment is
received by the Securities Intermediary; provided, however, that if such payment
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is received on a day that is not a Business Day or after 12:30 p.m., New York
City time, on a Business Day, then such payment shall be made no later than
10:30 a.m., New York City time, on the next succeeding Business Day.
Section 3.5 Assets Not Properly Released.
If the Purchase Contract Agent or any Holder shall receive any payments of
the liquidation amount or principal payments on account of financial assets
credited to the Collateral Account and not released therefrom in accordance with
this Agreement, the Purchase Contract Agent or such Holder shall hold the same
as trustee of an express trust for the benefit of the Company and, upon receipt
of an Officers' Certificate (as defined in the Purchase Contract Agreement) of
the Company so directing, promptly deliver the same to the Securities
Intermediary for credit to the Collateral Account or to the Company for
application to the obligations of the Holders under the related Purchase
Contracts, and the Purchase Contract Agent and Holders shall acquire no right,
title or interest in any such payments of liquidation or principal amounts so
received.
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ARTICLE IV
CONTROL
Section 4.1 Establishment Of Collateral Account.
The Securities Intermediary hereby confirms that (a) the Securities
Intermediary has established the Collateral Account, (b) the Collateral Account
is a securities account, (c) subject to the terms of this Agreement, the
Securities Intermediary shall treat the Purchase Contract Agent as entitled to
exercise the rights that comprise any financial asset credited to the Collateral
Account, (d) all property delivered to the Securities Intermediary pursuant to
this Agreement or the Purchase Contract Agreement will be credited promptly to
the Collateral Account and (e) all securities or other property underlying any
financial assets credited to the Collateral Account shall be registered in the
name of the Securities Intermediary, endorsed to the Securities Intermediary, or
in blank or credited to another securities account maintained in the name of the
Securities Intermediary, and in no case will any financial asset credited to the
Collateral Account be registered in the name of the Purchase Contract Agent or
any Holder, payable to the order of the Purchase Contract Agent or any Holder or
specially endorsed to the Purchase Contract Agent or any Holder.
Section 4.2 Treatment as Financial Assets.
Each item of property (whether investment property, financial asset,
security, instrument or cash) credited to the Collateral Account shall be
treated as a financial asset.
Section 4.3 Sole Control by Collateral Agent.
Except as provided in Article VI, at all times prior to the termination of
the Pledge, the Collateral Agent shall have sole control of the Collateral
Account, and the Securities Intermediary shall take instructions and directions
with respect to the Collateral Account solely from the Collateral Agent. If at
any time the Securities Intermediary shall receive an entitlement order issued
by the Collateral Agent and relating to the Collateral Account, the Securities
Intermediary shall comply with such entitlement order without further consent by
the Purchase Contract Agent or any Holder or any other Person. Until termination
of the Pledge, the Securities Intermediary will not comply with any entitlement
orders issued by the Purchase Contract Agent or any Holder.
Section 4.4 Securities Intermediary's Location.
The Collateral Account and the rights and obligations of the Securities
Intermediary, the Collateral Agent, the Purchase Contract Agent and the Holders
with respect thereto shall be governed by the laws of the State of New York.
Regardless of any provision in any other agreement, for purposes of the Code,
New York shall be deemed to be the Securities Intermediary's location, and the
Collateral Account (as well as the securities entitlements related thereto)
shall be governed by the laws of the State of New York.
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Section 4.5 No Other Claims.
Except for the claims and interest of the Collateral Agent and of the
Purchase Contract Agent and the Holders in the Collateral Account, the
Securities Intermediary does not know of any claim to, or interest in, the
Collateral Account or in any financial asset credited thereto. If any person
asserts any lien, encumbrance or adverse claim (including any writ, garnishment,
judgment, warrant of attachment, execution or similar process) against the
Collateral Account or in any financial asset carried therein, the Securities
Intermediary will promptly notify the Collateral Agent and the Purchase Contract
Agent.
Section 4.6 Investment and Release.
All proceeds of financial assets from time to time deposited in the
Collateral Account shall be invested and reinvested as provided in this
Agreement. At all times prior to termination of the Pledge, no property shall be
released from the Collateral Account except in accordance with this Agreement or
upon written instructions of the Collateral Agent.
Section 4.7 Statements and Confirmations.
The Securities Intermediary will promptly send copies of all statements,
confirmations and other correspondence concerning the Collateral Account and any
financial assets credited thereto simultaneously to each of the Purchase
Contract Agent and the Collateral Agent at their addresses for notices under
this Agreement.
Section 4.8 Tax Allocations.
All items of income, gain, expense and loss recognized in the Collateral
Account shall be reported to the Internal Revenue Service and all state and
local taxing authorities under the names and taxpayer identification numbers of
the Holders that are the beneficial owners thereof.
Section 4.9 No Other Agreements.
The Securities Intermediary has not entered into and prior to the
termination of the Pledge will not enter into any agreement with any other
Person relating to the Collateral Account or any financial assets credited
thereto, including, without limitation, any agreement to comply with entitlement
orders of any Person other than the Collateral Agent.
Section 4.10 Powers Coupled With an Interest.
The rights and powers granted in this Article IV to the Collateral Agent
have been granted in order to perfect its security interests in the Collateral
Account, are powers coupled with an interest and will be affected neither by the
bankruptcy of the Purchase Contract Agent or any Holder nor by the lapse of
time. The obligations of the Securities Intermediary under this Article IV shall
continue in effect until the termination of the Pledge.
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ARTICLE V
INITIAL DEPOSIT; ESTABLISHMENT OF TREASURY SPUS AND
REESTABLISHMENT OF CORPORATE SPUS.
Section 5.1 Initial Deposit of Shares.
Prior to or concurrently with the execution and delivery of this Agreement,
the Purchase Contract Agent, on behalf of the initial Holders of the Corporate
SPUS, shall Transfer to the Securities Intermediary, for credit to the
Collateral Account, the Shares or security entitlements relating to such Shares,
and the Securities Intermediary shall indicate by book entry that a securities
entitlement to such Shares has been credited to the Collateral Account.
Section 5.2 Establishment of Treasury Pies.
(a) At any time on or prior to the seventh Business Day
immediately preceding the Purchase Contract Settlement Date, a Holder of
Corporate SPUS shall have the right to establish or reestablish Treasury SPUS by
substitution of Treasury Securities or security entitlements thereto for the
Pledged Shares comprising a part of such Holder's Corporate SPUS in integral
multiples of 20 Corporate SPUS by:
(i) Transferring to the Securities Intermediary for credit
to the Collateral Account Treasury Securities or security
entitlements thereto having a Value equal to the liquidation
preference of the Pledged Shares to be released, accompanied by a
notice, substantially in the form of Exhibit C to the Purchase
Contract Agreement, whereupon the Purchase Contract Agent shall
deliver to the Collateral Agent a notice, substantially in the
form of Exhibit A hereto, (A) stating that such Holder has
Transferred Treasury Securities or security entitlements thereto
to the Securities Intermediary for credit to the Collateral
Account, (B) stating the Value of the Treasury Securities or
security entitlements thereto Transferred by such Holder and (C)
requesting that the Collateral Agent release from the Pledge the
Pledged Shares that are a component of such Corporate SPUS; and
(ii) delivering the related Corporate SPUS to the Purchase
Contract Agent. Upon receipt of such notice and confirmation that
Treasury Securities or security entitlements thereto have been
credited to the Collateral Account as described in such notice,
the Collateral Agent shall instruct the Securities Intermediary
by a notice, substantially in the form of Exhibit B hereto, to
release such Pledged Shares from the Pledge by Transfer to the
Purchase Contract Agent for distribution to such Holder, free and
clear of any lien, pledge or security interest created hereby.
(b) Upon credit to the Collateral Account of Treasury Securities
or security entitlements thereto delivered by a Holder of Corporate SPUS and
receipt of the related instruction from the Collateral Agent, the Securities
Intermediary shall release the Pledged Shares and shall promptly transfer the
same to the Purchase Contract Agent for distribution to such Holder, free and
clear of any lien, pledge or security interest created hereby.
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Section 5.3 Reestablishment of Corporate Pies.
(a) At any time on or prior to the seventh Business Day
immediately preceding the Purchase Contract Settlement Date, a Holder of
Treasury SPUS shall have the right to reestablish Corporate SPUS by substitution
of Shares or security entitlements thereto for Pledged Treasury Securities in
integral multiples of 20 Treasury SPUS by:
(i) Transferring to the Securities Intermediary for credit
to the Collateral Account Shares or security entitlements thereto
having a liquidation preference equal to the Value of the Pledged
Treasury Securities to be released, accompanied by a notice,
substantially in the form of Exhibit C to the Purchase Contract
Agreement, whereupon the Purchase Contract Agent shall deliver to
the Collateral Agent a notice, substantially in the form of
Exhibit C hereto, stating that such Holder has Transferred Shares
or security entitlements thereto to the Securities Intermediary
for credit to the Collateral Account and requesting that the
Collateral Agent release from the Pledge the Pledged Treasury
Securities related to such Treasury SPUS; and
(ii) delivering the related Treasury SPUS to the Purchase
Contract Agent.
Upon receipt of such notice and confirmation that Shares or security
entitlements thereto have been credited to the Collateral Account as described
in such notice, the Collateral Agent shall instruct the Securities Intermediary
by a notice in the form provided in Exhibit D to release such Pledged Treasury
Securities from the Pledge by Transfer to the Purchase Contract Agent for
distribution to such Holder.
(b) Upon credit to the Collateral Account of Shares or security
entitlements thereto and receipt of the related instruction from the Collateral
Agent, the Securities Intermediary shall release the applicable Pledged Treasury
Securities and shall promptly Transfer the same to the Purchase Contract Agent
for distribution to such Holder, free and clear of any lien, pledge or security
interest created hereby.
Section 5.4 Termination Event.
(a) Upon receipt by the Collateral Agent of written notice from
the Company or the Purchase Contract Agent that a Termination Event has
occurred, the Collateral Agent shall release all Collateral from the Pledge and
shall promptly Transfer: (1 any Pledged Shares; and
(i) any Pledged Treasury Securities
(ii) to the Purchase Contract Agent for the benefit of the
Holders, for distribution to such Holders in accordance with
their respective interests, free and clear of any lien, pledge or
security interest or other interest created hereby.
(b) If such Termination Event shall result from the Company's
becoming a debtor under the Bankruptcy Code, and if the Collateral Agent shall
for any reason fail promptly
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to effectuate the release and Transfer of all Pledged Shares or the Pledged
Treasury Securities, as the case may be, as provided by this Section 5.4, the
Purchase Contract Agent shall:
(i) use its best efforts to obtain an opinion of a
nationally recognized law firm reasonably acceptable to the
Collateral Agent to the effect that, as a result of the Company's
being the debtor in such a bankruptcy case, the Collateral Agent
will not be prohibited from releasing or Transferring the
Collateral as provided in this Section 5.4, and shall deliver
such opinion to the Collateral Agent within ten days after the
occurrence of such Termination Event, and if (A) the Purchase
Contract Agent shall be unable to obtain such opinion within ten
days after the occurrence of such Termination Event or (B) the
Collateral Agent shall continue, after delivery of such opinion,
to refuse to effectuate the release and Transfer of all Pledged
Shares, all the Pledged Treasury Securities or the Proceeds of
any of the foregoing, as the case may be, as provided in this
Section 5.4, then the Purchase Contract Agent shall within
fifteen days after the occurrence of such Termination Event
commence an action or proceeding in the court having jurisdiction
of the Company's case under the Bankruptcy Code seeking an order
requiring the Collateral Agent to effectuate the release and
transfer of all Pledged Shares or all the Pledged Treasury
Securities, as the case may be, as provided by this Section 5.4;
or
(ii) commence an action or proceeding like that described in
clause 5.4(b)(1)(B) hereof within ten days after the occurrence
of such Termination Event.
Section 5.5 Cash Settlement.
(a) Upon receipt by the Collateral Agent of
(1) a notice from the Purchase Contract Agent promptly
after the receipt by the Purchase Contract Agent of a notice that
a Holder of a Corporate SPUS or Treasury SPUS has elected, in
accordance with the procedures specified in Section 5.4(a)(i) or
(d)(i) of the Purchase Contract Agreement, respectively, to
settle its Purchase Contract with cash and
(2) payment by such Holder by deposit in the Collateral
Account on or prior to 11:00 a.m., New York City time, on the
fifth Business Day immediately preceding the Purchase Contract
Settlement Date, in the case of Corporate SPUS, and the Business
Day immediately preceding the Purchase Contract Settlement Date,
in the case of the Treasury SPUS, of the Purchase Price in lawful
money of the United States by certified or cashier's check or
wire transfer of immediately available funds payable to or upon
the order of the Securities Intermediary, then the Collateral
Agent shall (i) instruct the Securities Intermediary promptly to
invest any such Cash in Permitted Investments and (ii) release
from the Pledge (1) Pledged Shares in the case of a Holder of
Corporate SPUS, or (2) Pledged Treasury Securities in the case of
a Holder of Treasury SPUS with a liquidation or principal amount
equal to the product of (x) the Stated Amount times (y) the
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number of such Purchase Contracts as to which such Holders have
elected to effect a cash settlement pursuant to this Section
5.5(a) and shall instruct the Securities Intermediary to Transfer
all such Pledged Shares or Pledged Treasury Securities, as the
case may be, to the Purchase Contract Agent for the benefit of
such Holders, in each case free and clear of the Pledge created
hereby, for distribution to such Holders in accordance with their
respective interests. Upon receipt of the proceeds upon the
maturity of the Permitted Investments on the Purchase Contract
Settlement Date, the Collateral Agent shall (A instruct the
Securities Intermediary to pay the portion of such proceeds and
deliver any certified or cashier's checks received, in an
aggregate amount equal to the Purchase Price, to the Company on
the Purchase Contract Settlement Date, and (B) instruct the
Securities Intermediary to release any amounts in respect of the
interest earned from such Permitted Investments to the Purchase
Contract Agent for distribution to the relevant Holders in
accordance with their respective interests.
(b) If a Holder of a Corporate SPUS notifies the Purchase
Contract Agent as provided in paragraph 5.4(a)(i) of the Purchase Contract
Agreement of its intention to pay the Purchase Price in cash, but fails to make
such payment as required by paragraph 5.4(a)(ii) of the Purchase Contract
Agreement, such Holder shall be deemed to have consented to the disposition of
the Pledged Shares of such Holder in accordance with paragraph 5.4(a)(iii) of
the Purchase Contract Agreement.
(c) If a Holder of a Treasury SPUS notifies the Purchase
Contract Agent as provided in paragraph 5.4(d)(i) of the Purchase Contract
Agreement of its intention to pay the Purchase Price in cash, but fails to make
such payment as required by paragraph 5.4(d)(ii) of the Purchase Contract
Agreement, such Holder shall be deemed to have elected to pay the Purchase Price
in accordance with paragraph 5.4(d)(iii) of the Purchase Contract Agreement.
(d) Prior to 3:00 p.m., New York City time, on the fourth
Business Day immediately preceding the Purchase Contract Settlement Date, the
Securities Intermediary shall deliver to the Purchase Contract Agent a notice,
substantially in the form of Exhibit E hereto, stating (i) the amount of cash
that it has received with respect to the Cash Settlement of Corporate SPUS and
(ii) the amount of cash that it has received with respect to the Cash Settlement
of Treasury SPUS.
Section 5.6 Early Settlement.
Upon written notice to the Collateral Agent by the Purchase Contract Agent
that one or more Holders of Securities have elected to effect Early Settlement
of their respective obligations under the Purchase Contracts forming a part of
such Securities in accordance with the terms of the Purchase Contracts and the
Purchase Contract Agreement (setting forth the number of such Purchase Contracts
as to which such Holders have elected to effect Early Settlement), and that the
Purchase Contract Agent has received from such Holders, and paid to the Company
as confirmed in writing by the Company, the related Early Settlement Amounts
pursuant to the terms of the Purchase Contracts and the Purchase Contract
Agreement and that all conditions to such Early Settlement have been satisfied,
then the Collateral Agent shall release from the
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Pledge, (a) Pledged Shares, in the case of a Holder of Corporate SPUS, or (b)
Pledged Treasury Securities, in the case of a Holder of Treasury SPUS, with a
Value equal to the product of (i) the Stated Amount times (ii) the number of
Purchase Contracts as to which such Holders have elected to effect Early
Settlement and shall instruct the Securities Intermediary to Transfer all such
Pledged Shares or Pledged Treasury Securities, as the case may be, to the
Purchase Contract Agent for the benefit of such Holders, in each case free and
clear of the Pledge created hereby, for distribution to such Holders in
accordance with their respective interests.
Section 5.7 Application of Proceeds Settlement.
(a) If a Holder of Corporate SPUS has not elected to make an
effective Cash Settlement by notifying the Purchase Contract Agent in the manner
provided for in Section 5.4(a)(i) in the Purchase Contract Agreement, or has
given such notice but failed to deliver the required cash prior to 11:00 a.m.,
New York City time, on the fifth Business Day immediately preceding the Purchase
Contract Settlement Date, such Holder shall be deemed to have elected to pay for
the shares of Common Stock to be issued under such Purchase Contract(s) from the
Proceeds of the related Pledged Shares. In such event, the Collateral Agent
shall instruct the Securities Intermediary to Transfer the related Pledged
Shares to the Remarketing Agent for remarketing. Upon receiving such Pledged
Shares, the Remarketing Agent, pursuant to the terms of the Remarketing
Agreement, will use its reasonable efforts to remarket such Pledged Shares on
such date at a price of 100.50% of the aggregate liquidation preference of such
Pledged Shares. The Remarketing Agent will deposit in the Collateral Account the
portion of the Proceeds of such remarketing equal to 100% the aggregate
liquidation preference of the remarketed Pledged Shares and, pursuant to the
Remarketing Agreement, shall retain the portion of the Proceeds equal to 0.50%
of the aggregate liquidation preference of the remarketed Pledged Shares. On the
Purchase Contract Settlement Date, the Collateral Agent shall instruct the
Securities Intermediary to apply a portion of the Proceeds from such remarketing
equal to the aggregate liquidation preference of such Pledged Shares to satisfy
in full the obligations of such Holders of Corporate SPUS to pay the Purchase
Price to purchase the Common Stock under the related Purchase Contracts. The
balance of the Proceeds from such remarketing on deposit in the Collateral
Account shall be transferred to the Purchase Contract Agent for distribution to
the Holders in accordance with their respective interests. If the Remarketing
Agent advises the Collateral Agent in writing that there has been a Failed
Remarketing, thus resulting in an event of default under the Purchase Contract
Agreement and hereunder, the Collateral Agent, for the benefit of the Company
shall, at the written direction of the Company, dispose of the Pledged Shares in
accordance with applicable law and satisfy in full, from such disposition, such
Holders' obligations to pay the Purchase Price for the Common Stock.
(b) If a Holder of Treasury SPUS has not elected to make an
effective cash settlement by notifying the Purchase Contract Agent in the manner
provided for in Section 5.4(d)(i) of the Purchase Contract Agreement, or has
given such notice but failed to make such payment in the manner required by
Section 5.4(d)(ii) of the Purchase Contract Agreement, such Holder shall be
deemed to have elected to pay for the shares of Common Stock to be issued under
such Purchase Contract(s) from the Proceeds of the related Pledged Treasury
Securities. Upon maturity of the Pledged Treasury Securities, the Securities
Intermediary, at the written direction of the Collateral Agent, shall invest the
Cash Proceeds of the maturing Pledged Treasury Securities in Permitted
Investments. Without receiving any instruction from any such
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Holder of Treasury SPUS, the Collateral Agent shall apply the Proceeds of the
related Pledged Treasury Securities to the settlement of such Purchase Contracts
on the Purchase Contract Settlement Date. In the event the sum of the Proceeds
from the related Pledged Treasury Securities and the investment earnings from
the investment in Permitted Investments is in excess of the aggregate Purchase
Price of the Purchase Contracts being settled thereby, the Collateral Agent
shall instruct the Securities Intermediary to distribute such excess, when
received, to the Purchase Contract Agent for the benefit of such Holders for
distribution to such Holders in accordance with their respective interests.
ARTICLE VI
VOTING RIGHTS OF PLEDGED SHARES.
The Purchase Contract Agent may exercise, or refrain from exercising, any
and all voting and other consensual rights pertaining to the Pledged Shares or
any part thereof for any purpose not inconsistent with the terms of this
Agreement and in accordance with the terms of the Purchase Contract Agreement;
provided, that the Purchase Contract Agent shall not exercise or, as the case
- --------
may be, shall not refrain from exercising such right if, in the judgment of the
Purchase Contract Agent, such action would impair or otherwise have a material
adverse effect on the value of all or any of the Pledged Shares; and provided,
--------
further, that the Purchase Contract Agent shall give the Company and the
- -------
Collateral Agent at least five days' prior written notice of the manner in which
it intends to exercise, or its reasons for refraining from exercising, any such
right. Upon receipt of any notices and other communications in respect of any
Pledged Shares, including notice of any meeting at which holders of the Shares
are entitled to vote or solicitation of consents, waivers or proxies of holders
of the Shares, the Collateral Agent shall use reasonable efforts to send
promptly to the Purchase Contract Agent such notice or communication, and as
soon as reasonably practicable after receipt of a written request therefor from
the Purchase Contract Agent, execute and deliver to the Purchase Contract Agent
such proxies and other instruments in respect of such Pledged Shares (in form
and substance satisfactory to the Collateral Agent) as are prepared by the
Purchase Contract Agent with respect to the Pledged Shares.
ARTICLE VII
RIGHTS AND REMEDIES.
Section 7.1 Rights and Remedies of the Collateral Agent.
(a) In addition to the rights and remedies specified in Section
5.5 hereof or otherwise available at law or in equity, after an event of default
(as specified in Section 7.1(b) below) hereunder the Collateral Agent shall have
all of the rights and remedies with respect to the Collateral of a secured party
under the Code (whether or not the Code is in effect in the jurisdiction where
the rights and remedies are asserted) and the TRADES Regulations and such
additional rights and remedies to which a secured party is entitled under the
laws in effect in any jurisdiction where any rights and remedies hereunder may
be asserted. Without limiting the generality of the foregoing, such remedies may
include, to the extent permitted by applicable law,
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(i) retention of the Pledged Shares in full satisfaction of
the Holders' obligations under the Purchase Contracts or
(ii) sale of the Pledged Shares in one or more public or
private sales.
(b) Without limiting any rights or powers otherwise granted by this
Agreement to the Collateral Agent, in the event the Collateral Agent is unable
to make payments to the Company on account of principal payments of any Pledged
Treasury Securities as provided in Article III hereof, in satisfaction of the
Obligations of the Holder of the Securities of which such Pledged Treasury
Securities is a part under the related Purchase Contracts, the inability to make
such payments shall constitute an event of default hereunder and the Collateral
Agent shall have and may exercise, with reference to such Pledged Treasury
Securities and such Obligations of such Holder, any and all of the rights and
remedies available to a secured party under the Code and the TRADES Regulations
after default by a debtor, and as otherwise granted herein or under any other
law.
(c) Without limiting any rights or powers otherwise granted by this
Agreement to the Collateral Agent, the Collateral Agent is hereby irrevocably
authorized to receive and collect all payments of (i) dividends on the Pledged
Shares and (ii) the principal amount of the Pledged Treasury Securities,
subject, in each case, to the provisions of Article III hereof, and as otherwise
granted herein.
(d) The Purchase Contract Agent and each Holder of Securities, in the
event such Holder becomes the Holder of a Treasury SPUS, agrees that, from time
to time, upon the written request of the Collateral Agent, the Purchase Contract
Agent or such Holder shall execute and deliver such further documents and do
such other acts and things as the Collateral Agent may reasonably request in
order to maintain the Pledge, and the perfection and priority thereof, and to
confirm the rights of the Collateral Agent hereunder. The Purchase Contract
Agent shall have no liability to any Holder for executing any documents or
taking any such acts requested by the Collateral Agent hereunder, except for
liability for its own negligent acts, its own negligent failure to act or its
own willful misconduct.
Section 7.2 Substitutions.
Whenever a Holder has the right to substitute Treasury Securities, Shares
or security entitlements to either of them for financial assets held in the
Collateral Account, such substitution shall not constitute a novation of the
security interest created hereby.
ARTICLE VIII
REPRESENTATIONS AND WARRANTIES; COVENANTS.
Section 8.1 Representations and Warranties.
Each Holder from time to time, acting through the Purchase Contract Agent as
attorney-in-fact (it being understood that the Purchase Contract Agent shall not
be liable for any representation or warranty made by or on behalf of a Holder),
hereby represent and warrant to the Collateral Agent
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(with respect to his interest in the Collateral), which representations and
warranties shall be deemed repeated on each day a Holder Transfers Collateral
that:
(a) such Holder has the power to grant a security interest in
and lien on the Collateral;
(b) such Holder is the sole beneficial owner of the Collateral
and, in the case of Collateral delivered in physical form, is the sole holder of
such Collateral and is the sole beneficial owner of, or has the right to
Transfer, the Collateral it Transfers to the Securities Intermediary for credit
to the Collateral Account, free and clear of any security interest, lien,
encumbrance, call, liability to pay money or other restriction other than the
security interest and lien granted under Article II hereof;
(c) upon the Transfer of the Collateral to the Securities
Intermediary for credit to the Collateral Account, the Collateral Agent, for the
benefit of the Company, will have a valid and perfected first priority security
interest therein (assuming that any central clearing operation or any securities
intermediary or other entity not within the control of the Holder involved in
the Transfer of the Collateral, including the Collateral Agent and the
Securities Intermediary, gives the notices and takes the action required of it
hereunder and under applicable law for perfection of that interest and assuming
the establishment and exercise of control pursuant to Article IV hereof); and
(d) the execution and performance by the Holder of its
obligations under this Agreement will not result in the creation of any security
interest, lien or other encumbrance on the Collateral other than the security
interest and lien granted under Article II hereof or violate any provision of
any existing law or regulation applicable to it or of any mortgage, charge,
pledge, indenture, contract or undertaking to which it is a party or which is
binding on it or any of its assets.
Section 8.2 Covenants.
The Purchase Contract Agent and the Holders from time to time, acting
through the Purchase Contract Agent as their attorney-in-fact (it being
understood that the Purchase Contract Agent shall not be liable for any covenant
made by or on behalf of a Holder), hereby covenant to the Collateral Agent that
for so long as the Collateral remains subject to the Pledge:
(a) neither the Purchase Contract Agent nor such Holders will
create or purport to create or allow to subsist any mortgage, charge, lien,
pledge or any other security interest whatsoever over the Collateral or any part
of it other than pursuant to this Agreement; and
(b) neither the Purchase Contract Agent nor such Holders will
sell or otherwise dispose (or attempt to dispose) of the Collateral or any part
of it except for the beneficial interest therein, subject to the Pledge
hereunder, transferred in connection with the Transfer of the Securities.
16
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ARTICLE IX
THE COLLATERAL AGENT AND THE
SECURITIES INTERMEDIARY.
It is hereby agreed as follows:
Section 9.1 Appointment, Powers and Immunities.
The Collateral Agent shall act as agent for the Company hereunder with such
powers as are specifically vested in the Collateral Agent by the terms of this
Agreement, together with such other powers as are reasonably incidental thereto.
The Collateral Agent:
(a) shall have no duties or responsibilities except those
expressly set forth in this Agreement and no implied covenants or obligations
shall be inferred from this Agreement against the Collateral Agent, nor shall
the Collateral Agent be bound by the provisions of any agreement by any party
hereto beyond the specific terms hereof;
(b) shall not be responsible for any recitals contained in this
Agreement, or in any certificate or other document referred to or provided for
in, or received by it under, this Agreement, the Securities or the Purchase
Contract Agreement, or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement (other than as against the
Collateral Agent), the Securities or the Purchase Contract Agreement or any
other document referred to or provided for herein or therein or for any failure
by the Company or any other Person (except the Collateral Agent) to perform any
of its obligations hereunder or thereunder or for the perfection, priority or,
except as expressly required hereby, maintenance of any security interest
created hereunder;
(c) shall not be required to initiate or conduct any litigation
or collection proceedings hereunder (except pursuant to directions furnished
under Section 9.2 hereof, subject to Section 9.6 hereof);
(d) shall not be responsible for any action taken or omitted to
be taken by it hereunder or under any other document or instrument referred to
or provided for herein or in connection herewith or therewith, except for its
own negligence or willful misconduct; and
(e) shall not be required to advise any party as to selling or
retaining, or taking or refraining from taking any action with respect to, any
securities or other property deposited hereunder. Subject to the foregoing,
during the term of this Agreement, the Collateral Agent shall take all
reasonable action in connection with the safekeeping and preservation of the
Collateral hereunder.
No provision of this Agreement shall require the Collateral Agent to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder. In no event shall the Collateral
Agent be liable for any amount in excess of the Value of the Collateral.
Notwithstanding the foregoing, each of the Collateral Agent and the Securities
Intermediary in its individual capacity hereby waives any right of setoff,
bankers lien, liens or
17
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perfection rights as securities intermediary or any counterclaim with respect to
any of the Collateral.
Section 9.2 Instructions of the Company.
The Company shall have the right, by one or more instruments in writing
executed and delivered to the Collateral Agent, to direct the time, method and
place of conducting any proceeding for the realization of any right or remedy
available to the Collateral Agent, or of exercising any power conferred on the
Collateral Agent, or to direct the taking or refraining from taking of any
action authorized by this Agreement; provided, however, that (i) such direction
-------- -------
shall not conflict with the provisions of any law or of this Agreement and (ii)
the Collateral Agent shall be adequately indemnified as provided herein. Nothing
in this Section 9.2 shall impair the right of the Collateral Agent in its
discretion to take any action or omit to take any action which it deems proper
and which is not inconsistent with such direction.
Section 9.3 Reliance by Collateral Agent and Securities Intermediary.
Each of the Securities Intermediary and the Collateral Agent shall be
entitled to rely upon any certification, order, judgment, opinion, notice or
other communication (including, without limitation, any thereof by telephone,
telecopy, telex or facsimile) believed by it to be genuine and correct and to
have been signed or sent by or on behalf of the proper Person or Persons
(without being required to determine the correctness of any fact stated therein)
and upon advice and statements of legal counsel and other experts selected by
the Collateral Agent and the Securities Intermediary. As to any matters not
expressly provided for by this Agreement, the Collateral Agent and the
Securities Intermediary shall in all cases be fully protected in acting, or in
refraining from acting, hereunder in accordance with instructions given by the
Company in accordance with this Agreement.
Section 9.4 Rights In Other Capacities.
The Collateral Agent and the Securities Intermediary and their affiliates
may (without having to account therefor to the Company) accept deposits from,
lend money to, make their investments in and generally engage in any kind of
banking, trust or other business with the Purchase Contract Agent, any other
Person interested herein and any Holder of Securities (and any of their
respective subsidiaries or affiliates) as if it were not acting as the
Collateral Agent, and the Collateral Agent, the Securities Intermediary and
their affiliates may accept fees and other consideration from the Purchase
Contract Agent and any Holder of Securities without having to account for the
same to the Company; provided that each of the Securities Intermediary and the
--------
Collateral Agent covenants and agrees with the Company that it shall not accept,
receive or permit there to be created in favor of itself and shall take no
affirmative action to permit there to be created in favor of any other Person,
any security interest, lien or other encumbrance of any kind in or upon the
Collateral other than the lien created by the Pledge.
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Section 9.5 Non-Reliance on Collateral Agent and Securities Intermediary.
Neither the Securities Intermediary nor the Collateral Agent shall be
required to keep itself informed as to the performance or observance by the
Purchase Contract Agent or any Holder of Securities of this Agreement, the
Purchase Contract Agreement, the Securities or any other document referred to or
provided for herein or therein or to inspect the properties or books of the
Purchase Contract Agent or any Holder of Securities. Neither the Collateral
Agent nor the Securities Intermediary shall have any duty or responsibility to
provide the Company with any credit or other information concerning the affairs,
financial condition or business of the Purchase Contract Agent or any Holder of
Securities (or any of their respective affiliates) that may come into the
possession of the Collateral Agent or the Securities Intermediary or any of
their respective affiliates.
Section 9.6 Compensation and Indemnity.
The Company agrees to: (i) pay the Collateral Agent and the Securities
Intermediary from time to time such compensation as shall be agreed in writing
between the Company and the Collateral Agent or the Securities Intermediary, as
the case may be, for all services rendered by them hereunder and (ii) indemnify
the Collateral Agent and the Securities Intermediary for, and to hold each of
them harmless from and against, any loss, liability or reasonable out-of-pocket
expense incurred without negligence, willful misconduct or bad faith on its
part, arising out of or in connection with the acceptance or administration of
its powers and duties under this Agreement, including the reasonable out-of-
pocket costs and expenses (including reasonable fees and expenses of counsel) of
defending itself against any claim or liability in connection with the exercise
or performance of such powers and duties.
Section 9.7 Failure to Act.
In the event of any ambiguity in the provisions of this Agreement or any
dispute between or conflicting claims by or among the parties hereto or any
other Person with respect to any funds or property deposited hereunder, the
Collateral Agent and the Securities Intermediary shall be entitled, after prompt
notice to the Company and the Purchase Contract Agent, at its sole option, to
refuse to comply with any and all claims, demands or instructions with respect
to such property or funds so long as such dispute or conflict shall continue,
and the Collateral Agent and the Securities Intermediary shall not be or become
liable in any way to any of the parties hereto for its failure or refusal to
comply with such conflicting claims, demands or instructions. The Collateral
Agent and the Securities Intermediary shall be entitled to refuse to act until
either (i) such conflicting or adverse claims or demands shall have been finally
determined by a court of competent jurisdiction or settled by agreement between
the conflicting parties as evidenced in a writing satisfactory to the Collateral
Agent or the Securities Intermediary or (ii) the Collateral Agent or the
Securities Intermediary shall have received security or an indemnity
satisfactory to it sufficient to save it harmless from and against any and all
loss, liability or reasonable out-of-pocket expense which it may incur by reason
of its acting. The Collateral Agent and the Securities Intermediary may in
addition elect to commence an interpleader action or seek other judicial relief
or orders as the Collateral Agent or the Securities Intermediary may deem
necessary. Notwithstanding anything contained herein to the contrary, neither
the Collateral
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Agent nor the Securities Intermediary shall be required to take any action that
is in its opinion contrary to law or to the terms of this Agreement, or which
would in its opinion subject it or any of its officers, employees or directors
to liability.
Section 9.8 Resignation of Collateral Agent and Securities Intermediary.
(a) Subject to the appointment and acceptance of a successor
Collateral Agent as provided below, (i) the Collateral Agent may resign at any
time by giving notice thereof to the Company and the Purchase Contract Agent as
attorney-in-fact for the Holders of Securities, (ii) the Collateral Agent may be
removed at any time by the Company and (iii) if the Collateral Agent fails to
perform any of its material obligations hereunder in any material respect for a
period of not less than 20 days after receiving written notice of such failure
by the Purchase Contract Agent and such failure shall be continuing, the
Collateral Agent may be removed by the Purchase Contract Agent. The Purchase
Contract Agent shall promptly notify the Company of any removal of the
Collateral Agent pursuant to clause (iii) of the immediately preceding sentence.
Upon any such resignation or removal, the Company shall have the right to
appoint a successor Collateral Agent. If no successor Collateral Agent shall
have been so appointed and shall have accepted such appointment within 30 days
after the retiring Collateral Agent's giving of notice of resignation or such
removal, then the retiring Collateral Agent may petition any court of competent
jurisdiction for the appointment of a successor Collateral Agent. The Collateral
Agent shall be a bank which has an office in New York, New York with a combined
capital and surplus of at least [$50,000,000] and shall not be the Purchase
Contract Agent or any of its affiliates. Upon the acceptance of any appointment
as Collateral Agent hereunder by a successor Collateral Agent, such successor
Collateral Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Collateral Agent, and the
retiring Collateral Agent shall take all appropriate action to transfer any
money and property held by it hereunder (including the Collateral) to such
successor Collateral Agent. The retiring Collateral Agent shall, upon such
succession, be discharged from its duties and obligations as Collateral Agent
hereunder. After any retiring Collateral Agent's resignation hereunder as
Collateral Agent, the provisions of this Article IX shall continue in effect for
its benefit in respect of any actions taken or omitted to be taken by it while
it was acting as the Collateral Agent.
Subject to the appointment and acceptance of a successor Securities
Intermediary as provided below, (i) the Securities Intermediary may resign at
any time by giving notice thereof to the Company and the Purchase Contract Agent
as attorney-in-fact for the Holders of Securities, (ii) the Securities
Intermediary may be removed at any time by the Company and (iii) if the
Securities Intermediary fails to perform any of its material obligations
hereunder in any material respect for a period of not less than 20 days after
receiving written notice of such failure by the Purchase Contract Agent and such
failure shall be continuing, the Securities Intermediary may be removed by the
Purchase Contract Agent. The Purchase Contract Agent shall promptly notify the
Company of any removal of the Securities Intermediary pursuant to clause (iii)
of the immediately preceding sentence. Upon any such resignation or removal, the
Company shall have the right to appoint a successor Securities Intermediary. If
no successor Securities Intermediary shall have been so appointed and shall have
accepted such appointment within 30 days after the retiring Securities
Intermediary's giving of notice of resignation or such removal, then the
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retiring Securities Intermediary may petition any court of competent
jurisdiction for the appointment of a successor Securities Intermediary. The
Securities Intermediary shall be a bank which has an office in New York, New
York with a combined capital and surplus of at least [$50,000,000] and shall not
be the Purchase Contract Agent or any of its affiliates. Upon the acceptance of
any appointment as Securities Intermediary hereunder by a successor Securities
Intermediary, such successor Securities Intermediary shall thereupon succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring Securities Intermediary, and the retiring Securities Intermediary shall
take all appropriate action to transfer any money and property held by it
hereunder (including the Collateral) to such successor Securities Intermediary.
The retiring Securities Intermediary shall, upon such succession, be discharged
from its duties and obligations as Securities Intermediary hereunder. After any
retiring Securities Intermediary's resignation hereunder as Securities
Intermediary, the provisions of this Article IX shall continue in effect for its
benefit in respect of any actions taken or omitted to be taken by it while it
was acting as the Securities Intermediary.
Section 9.9 Right to Appoint Agent or Advisor.
The Collateral Agent shall have the right to appoint agents or advisors in
connection with any of its duties hereunder, and the Collateral Agent shall not
be liable for any action taken or omitted by, or in reliance upon the advice of,
such agents or advisors selected in good faith. The appointment of agents
pursuant to this Section 9.9 shall be subject to prior consent of the Company,
which consent shall not be unreasonably withheld.
Section 9.10 Survival.
The provisions of this Article IX shall survive termination of this
Agreement and the resignation or removal of the Collateral Agent or the
Securities Intermediary.
Section 9.11 Exculpation.
Anything in this Agreement to the contrary notwithstanding, in no event
shall the Collateral Agent or the Securities Intermediary or their officers,
directors, employees or agents be liable under this Agreement to any third party
for indirect, special, punitive, or consequential loss or damage of any kind
whatsoever, including lost profits, whether or not the likelihood of such loss
or damage was known to the Collateral Agent or the Securities Intermediary, or
any of them, incurred without any act or deed that is found to be attributable
to gross negligence or willful misconduct on the part of the Collateral Agent or
the Securities Intermediary.
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ARTICLE X
AMENDMENT.
Section 10.1 Amendment Without Consent of Holders.
Without the consent of any Holders, the Company, the Collateral Agent, the
Securities Intermediary and the Purchase Contract Agent, at any time and from
time to time, may amend this Agreement, in form satisfactory to the Company, the
Collateral Agent, the Securities Intermediary and the Purchase Contract Agent,
for any of the following purposes:
(1) to evidence the succession of another Person to the
Company, and the assumption by any such successor of the
covenants of the Company;
(2) to add to the covenants of the Company for the benefit
of the Holders, or to surrender any right or power herein
conferred upon the Company, so long as such covenants or such
surrender do not adversely affect the validity, perfection or
priority of the Pledge created hereunder;
(3) to evidence and provide for the acceptance of
appointment hereunder by a successor Collateral Agent, Securities
Intermediary or Purchase Contract Agent; or
(4) to cure any ambiguity (or formal defect), to correct or
supplement any provisions herein which may be inconsistent with
any other such provisions herein, or to make any other provisions
with respect to such matters or questions arising under this
Agreement, provided such action shall not adversely affect the
interests of the Holders.
Section 10.2 Amendment with Consent of Holders.
With the consent of the Holders of not less than a majority of the Purchase
Contracts at the time outstanding, by Act of said Holders delivered to the
Company, the Purchase Contract Agent, the Securities Intermediary or the
Collateral Agent, as the case may be, the Company, when duly authorized, the
Purchase Contract Agent, the Securities Intermediary and the Collateral Agent
may amend this Agreement for the purpose of modifying in any manner the
provisions of this Agreement or the rights of the Holders in respect of the
Securities; provided, however, that no such supplemental agreement shall,
-------- -------
without the unanimous consent of the Holders of each Outstanding Security
adversely affected thereby,
(1) change the amount or type of Collateral underlying a
Security (except for the rights of holders of Corporate SPUS to
substitute the Treasury Securities for the Pledged Shares or the
rights of Holders of Treasury SPUS to substitute Shares for the
Pledged Treasury Securities), impair the right of the Holder of
any Security to receive distributions on the underlying
Collateral or otherwise adversely affect the Holder's rights in
or to such Collateral; or
22
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(2) otherwise effect any action that would require the
consent of the Holder of each Outstanding Security affected
thereby pursuant to the Purchase Contract Agreement if such
action were effected by an agreement supplemental thereto; or
(3) reduce the percentage of Purchase Contracts the consent
of whose Holders is required for any such amendment;
provided that if any amendment or proposal referred to above would adversely
- --------
affect only the Corporate SPUS or only the Treasury SPUS, then only the affected
class of Holder as of the record date for the Holders entitled to vote thereon
will be entitled to vote on such amendment or proposal, and such amendment or
proposal shall not be effective except with the consent of Holders of not less
than a majority of such class; provided that the unanimous consent of the
--------
Holders of each outstanding Purchase Contract of such class affected thereby
shall be required to approve any amendment or proposal specified in clauses
(1) - - (3) above.
It shall not be necessary for any Act of Holders under this Article to
approve the particular form of any proposed amendment, but it shall be
sufficient if such Act shall approve the substance thereof.
Section 10.3 Execution of Amendments.
In executing any amendment permitted by this Section, the Collateral Agent,
the Securities Intermediary and the Purchase Contract Agent shall be entitled to
receive and (subject to Section 7.1 of the Purchase Contract Agreement with
respect to the Purchase Contract Agent) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such amendment is
authorized or permitted by this Agreement and that all conditions precedent, if
any, to the execution and delivery of such amendment have been satisfied.
Section 10.4 Effect of Amendments.
Upon the execution of any amendment under this Section, this Agreement
shall be modified in accordance therewith, and such amendment shall form a part
of this Agreement for all purposes; and every Holder of Certificates theretofore
or thereafter authenticated, executed on behalf of the Holders and delivered
under the Purchase Contract Agreement shall be bound thereby.
Section 10.5 Reference to Amendments.
Certificates authenticated, executed on behalf of the Holders and delivered
after the execution of any amendment pursuant to this Section may, and shall if
required by the Collateral Agent or the Purchase Contract Agent, bear a notation
in form approved by the Purchase Contract Agent and the Collateral Agent as to
any matter provided for in such amendment. If the Company shall so determine,
new Security Certificates so modified as to conform, in the opinion of the
Collateral Agent, the Purchase Contract Agent and the Company, to any such
amendment may be prepared and executed by the Company and authenticated,
executed on behalf of the
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Holders and delivered by the Purchase Contract Agent in accordance with the
Purchase Contract Agreement in exchange for Outstanding Security Certificates.
ARTICLE XI
MISCELLANEOUS.
Section 11.1 No Waiver.
No failure on the part of the Collateral Agent or any of its agents to exercise,
and no course of dealing with respect to, and no delay in exercising, any right,
power or remedy hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise by the Collateral Agent or any of its agents of any
right, power or remedy hereunder preclude any other or further exercise thereof
or the exercise of any other right, power or remedy. The remedies herein are
cumulative and are not exclusive of any remedies provided by law.
Section 11.2 Governing Law.
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York without regard to its conflicts of laws
principles. Without limiting the foregoing, the above choice of law is expressly
agreed to by the Company, the Securities Intermediary, the Collateral Agent and
the Holders from time to time acting through the Purchase Contract Agent, as
their attorney-in-fact, in connection with the establishment and maintenance of
the Collateral Account. The Company, the Collateral Agent, the Securities
Intermediary and the Holders from time to time of the Securities, acting through
the Purchase Contract Agent as their attorney-in-fact, hereby submit to the
nonexclusive jurisdiction of the United States District Court for the Southern
District of New York and of any New York state court sitting in New York City
for the purposes of all legal proceedings arising out of or relating to this
Agreement or the transactions contemplated hereby. The Company, the Collateral
Agent, the Securities Intermediary and the Holders from time to time of the
Securities, acting through the Purchase Contract Agent as their attorney-in-
fact, irrevocably waive, to the fullest extent permitted by applicable law, any
objection which they may now or hereafter have to the laying of the venue of any
such proceeding brought in such a court and any claim that any such proceeding
brought in such a court has been brought in an inconvenient forum.
Section 11.3 Notices.
All notices, requests, consents and other communications provided for
herein (including, without limitation, any modifications of, or waivers or
consents under, this Agreement) shall be given or made in writing (including,
without limitation, by telecopy) delivered to the intended recipient at the
"Address for Notices" specified below its name on the signature pages hereof or,
as to any party, at such other address as shall be designated by such party in a
notice to the other parties. Except as otherwise provided in this Agreement, all
such communications shall be deemed to have been duly given when transmitted by
telecopier or personally delivered or, in the case of a mailed notice, upon
receipt, in each case given or addressed as aforesaid.
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Section 11.4 Successors and Assigns.
This Agreement shall be binding upon and inure to the benefit of the
respective successors and assigns of the Company, the Collateral Agent, the
Securities Intermediary and the Purchase Contract Agent, and the Holders from
time to time of the Securities, by their acceptance of the same, shall be deemed
to have agreed to be bound by the provisions hereof and to have ratified the
agreements of, and the grant of the Pledge hereunder by, the Purchase Contract
Agent.
Section 11.5 Counterparts.
This Agreement may be executed in any number of counterparts, all of which
taken together shall constitute one and the same instrument, and any of the
parties hereto may execute this Agreement by signing any such counterpart.
Section 11.6 Severability.
If any provision hereof is invalid and unenforceable in any jurisdiction,
then, to the fullest extent permitted by law, (i) the other provisions hereof
shall remain in full force and effect in such jurisdiction and shall be
liberally construed in order to carry out the intentions of the parties hereto
as nearly as may be possible and (ii) the invalidity or unenforceability of any
provision hereof in any jurisdiction shall not affect the validity or
enforceability of such provision in any other jurisdiction.
Section 11.7 Expenses, Etc.
The Company agrees to reimburse the Collateral Agent and the Securities
Intermediary for: (a) all reasonable out-of-pocket costs and expenses of the
Collateral Agent and the Securities Intermediary (including, without limitation,
the reasonable fees and expenses of counsel to the Collateral Agent and the
Securities Intermediary), in connection with (i) the negotiation, preparation,
execution and delivery or performance of this Agreement and (ii) any
modification, supplement or waiver of any of the terms of this Agreement; (b)
all reasonable costs and expenses of the Collateral Agent and the Securities
Intermediary (including, without limitation, reasonable fees and expenses of
counsel) in connection with (i) any enforcement or proceedings resulting or
incurred in connection with causing any Holder of Securities to satisfy its
obligations under the Purchase Contracts forming a part of the Securities and
(ii) the enforcement of this Section 11.7; and (c) all transfer, stamp,
documentary or other similar taxes, assessments or charges levied by any
governmental or revenue authority in respect of this Agreement or any other
document referred to herein and all costs, expenses, taxes, assessments and
other charges incurred in connection with any filing, registration, recording or
perfection of any security interest contemplated hereby.
Section 11.8 Security Interest Absolute.
All rights of the Collateral Agent and security interests hereunder, and
all obligations of the Holders from time to time hereunder, shall be absolute
and unconditional irrespective of:
25
<PAGE>
(a) any lack of validity or enforceability of any provision of
the Purchase Contracts or the Securities or any other agreement or instrument
relating thereto;
(b) any change in the time, manner or place of payment of, or
any other term of, or any increase in the amount of, all or any of the
obligations of Holders of the Securities under the related Purchase Contracts,
or any other amendment or waiver of any term of, or any consent to any departure
from any requirement of, the Purchase Contract Agreement or any Purchase
Contract or any other agreement or instrument relating thereto; or
(c) any other circumstance which might otherwise constitute a
defense available to, or discharge of, a borrower, a guarantor or a pledgor.
26
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
[____________________], DOMINION RESOURCES, INC.,
as Purchase Contract Agent and as a Virginia corporation
attorney-in-fact of the Holders from
time to time of the Securities
By: By:
Name: Name:
Title: Title:
Address for Notices: Address for Notices:
120 Tredegar Street
Richmond, Virginia 23219
Attention: Attention:
Telecopy: Telecopy: (804) 819-_____
[_____________________], [_________________________]
as Collateral Agent as Securities Intermediary
By: By:
Name: Name:
Title: Title:
Address for Notices: Address for Notices:
Attention: Attention:
Telecopy: Telecopy:
27
<PAGE>
EXHIBIT A
INSTRUCTION
FROM PURCHASE CONTRACT AGENT
TO COLLATERAL AGENT
(Establishment of Treasury SPUS)
[Securities Intermediary]
Attention:
Telecopy:
Re: ________ SPUS of Dominion Resources, Inc. (the "Company")
Please refer to the Pledge Agreement dated as of _______ [__], ____ (the
"Pledge Agreement"), among the Company, you, as Collateral Agent,
[_____________________], as Securities Intermediary, and the undersigned, as
Purchase Contract Agent and as attorney-in-fact for the holders of SPUS from
time to time. Capitalized terms used herein but not defined shall have the
meaning set forth in the Pledge Agreement.
We hereby notify you in accordance with Section 5.2 of the Pledge Agreement
that the holder of securities named below (the "Holder") has elected to
substitute $__________ Value of Treasury Securities or security entitlements
thereto in exchange for an equal Value of Pledged Shares and has delivered to
the undersigned a notice stating that the Holder has Transferred such Treasury
Securities or security entitlements thereto to the Securities Intermediary, for
credit to the Collateral Account.
We hereby request that you instruct the Securities Intermediary, upon
confirmation that such Treasury Securities or security entitlements thereto have
been credited to the Collateral Account, to release to the undersigned an equal
Value of Pledged Shares in accordance with Section 5.2 of the Pledge Agreement.
[Purchase Contract Agent]
Date:
By:
Name:
Title:
<PAGE>
Please print name and address of Holder electing to substitute Treasury
Securities or security entitlements thereto for the Pledged Shares:
__________________
Name
_______________________________________
Social Security or other Taxpayer Identification Number, if any
__________________
Address
__________________
__________________
2
<PAGE>
EXHIBIT B
INSTRUCTION
FROM COLLATERAL AGENT
TO SECURITIES INTERMEDIARY
(Establishment of Treasury SPUS)
[Securities Intermediary]
Attention:
Telecopy:
Re: ________ SPUS of Dominion Resources, Inc. (the "Company") Securities
Account No. [________] entitled "[_____________________], as Collateral
Agent, Securities Account ([_____________________])" (the "Collateral
Account")
Please refer to the Pledge Agreement, dated as of _______ [__], ____ (the
"Pledge Agreement"), among the Company, you, as Securities Intermediary,
[_____________________], as Purchase Contract Agent and as attorney-in-fact for
the holders of SPUS from time to time, and the undersigned, as Collateral Agent.
Capitalized terms used herein but not defined shall have the meanings set forth
in the Pledge Agreement.
When you have confirmed that $__________ Value of Treasury Securities or
security entitlements thereto has been credited to the Collateral Account by or
for the benefit of _________, as Holder of SPUS (the "Holder"), you are hereby
instructed to release from the Collateral Account an equal Value of Shares or
security entitlements thereto by Transfer to the Purchase Contract Agent.
[Collateral Agent]
Dated:
By:
Name:
Title:
<PAGE>
Please print name and address of Holder:
_____________________
Name
_______________________________________
Social Security or other Taxpayer Identification Number, if any
_____________________
Address
_____________________
_____________________
2
<PAGE>
EXHIBIT C
INSTRUCTION
FROM PURCHASE CONTRACT AGENT
TO COLLATERAL AGENT
(Reestablishment of Corporate SPUS)
[Collateral Agent]
Attention:
Telecopy:
Re: ________ SPUS of Dominion Resources, Inc. (the "Company")
Please refer to the Pledge Agreement, dated as of _______ [ ], ____ (the
"Pledge Agreement"), among the Company, you, as Collateral Agent,
[_____________________], as Securities Intermediary, and the undersigned, as
Purchase Contract Agent and as attorney-in-fact for the holders of SPUS from
time to time. Capitalized terms used herein but not defined shall have the
meanings set forth in the Pledge Agreement.
We hereby notify you in accordance with Section 5.3(a) of the Pledge
Agreement that the holder of securities listed below (the "Holder") has elected
to substitute $__________ Value of Shares or security entitlements thereto in
exchange for $__________ Value of Pledged Treasury Securities and has delivered
to the undersigned a notice stating that the Holder has Transferred such Shares
or security entitlements thereto to the Securities Intermediary, for credit to
the Collateral Account.
We hereby request that you instruct the Securities Intermediary, upon
confirmation that such Shares or security entitlements thereto have been
credited to the Collateral Account, to release to the undersigned $__________
Value of Treasury Securities or security entitlements thereto related to _____
Treasury SPUS of such Holder in accordance with Section 5.3(a) of the Pledge
Agreement.
[Purchase Contract Agent]
Date:
By:
Name:
Title:
<PAGE>
Please print name and address of Holder electing to substitute Pledged
Shares or security entitlements thereto for Pledged Treasury Securities:
____________________
Name
_______________________________________
Social Security or other Taxpayer Identification Number, if any
____________________
Address
____________________
____________________
2
<PAGE>
EXHIBIT D
INSTRUCTION
FROM COLLATERAL AGENT
TO SECURITIES INTERMEDIARY
(Reestablishment of Corporate SPUS)
[Securities Intermediary]
Attention:
Telecopy:
Re: ________ SPUS of Dominion Resources, Inc. (the "Company")
Securities Account No. _________ entitled "[_____________________], as
Collateral Agent, Securities Account ([_____________________])" (the
"Collateral Account")
Please refer to the Pledge Agreement, dated as of _______ [__], ____ (the
"Pledge Agreement"), among the Company, you, as Securities Intermediary,
[_____________________], as Purchase Contract Agent and as attorney-in-fact for
the holders of SPUS from time to time, and the undersigned, as Collateral Agent.
Capitalized terms used herein but not defined shall have the meanings set forth
in the Pledge Agreement.
When you have confirmed that $_________ Value of Shares or security
entitlements thereto has been credited to the Collateral Account by or for the
benefit of _________, as Holder of SPUS (the "Holder"), you are hereby
instructed to release from the Collateral Account $__________ Value of Treasury
Securities or security entitlements thereto by Transfer to the Purchase Contract
Agent.
[Collateral Agent]
Dated:
By:
Name:
Title:
<PAGE>
Please print name and address of Holder:
_______________________
Name
_______________________________________
Social Security or other Taxpayer Identification Number, if any
_______________________
Address
_______________________
_______________________
2
<PAGE>
EXHIBIT E
NOTICE OF CASH SETTLEMENT FROM SECURITIES
INTERMEDIARY TO PURCHASE CONTRACT AGENT
(Cash Settlement Amounts)
[Purchase Contract Agent]
Telecopier No.:
Attention:
Re: ________ SPUS of Dominion Resources, Inc. (the "Company")
Please refer to the Pledge Agreement, dated as of _______ [ ], ____ (the
"Pledge Agreement"), by and among you, the Company, [_____________________], as
Collateral Agent and the undersigned, as Securities Intermediary. Unless
otherwise defined herein, terms defined in the Pledge Agreement are used herein
as defined therein
In accordance with Section 5.5(d) of the Pledge Agreement, we hereby notify
you that as of 11:00 a.m., [(ON THE FIFTH BUSINESS DAY IMMEDIATELY PRECEDING THE
PURCHASE CONTRACT SETTLEMENT DATE)], we have received (i) $_____ in immediately
available funds paid in an aggregate amount equal to the Purchase Price to the
Company on the Purchase Contract Settlement Date with respect to __________
Corporate SPUS and (ii) $_________ in immediately available funds paid in an
aggregate amount equal to the Purchase Price to the Company on the Purchase
Contract Settlement Date with respect to ______ Treasury SPUS.
[Securities Intermediary]
Date:
By:
Name:
Title:
<PAGE>
4(xvii)
FORM OF
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT dated as of _______, 200_ between DOMINION RESOURCES, INC., a
Virginia corporation ("Dominion Resources"), and DOMINION RESOURCES CAPITAL
TRUST __, a Delaware business trust (the "Trust").
WHEREAS, the Trust intends to issue its ___% Common Securities (the "Common
Securities") to, and purchase ___% Junior Subordinated Debentures (the
"Debentures") from, Dominion Resources, and to issue and sell its ___% Trust
Preferred Securities (the "Trust Preferred 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 ________, 2000, 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;
NOW, THEREFORE, in consideration of the purchase by each holder of the
Trust Preferred 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 Trust Preferred Securities the
amounts due such holders pursuant to the terms of the Trust Preferred
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.
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 Trust Preferred
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 Trust
<PAGE>
Preferred Securities or any Beneficiary must restore payment of any sums paid
under the Trust Preferred Securities, under any Obligation, under the Trust
Preferred Securities Guarantee Agreement dated the date hereof by Dominion
Resources 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.
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.
<PAGE>
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 Trust
Preferred 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 Trust Preferred 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 __
c/o Dominion Resources, Inc.
120 Tredegar Street
Richmond, VA 23219
Attention: Treasurer
[Telecopy No.: (804) 819-
with a copy to:
Dominion Resources, Inc.
120 Tredegar Street
Richmond, VA 23219
Attention: Treasurer
[Telecopy No.: (804) 819-
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).
<PAGE>
THIS AGREEMENT is executed as of the day and year first above written.
DOMINION RESOURCES, INC.
By: ___________________________________
Name:
Title:
DOMINION RESOURCES CAPITAL TRUST
By: ___________________________________
as Administrative Trustee
<PAGE>
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT dated as of _______, 2000 between DOMINION RESOURCES, INC., a
Virginia corporation ("Dominion Resources"), and DOMINION RESOURCES CAPITAL
TRUST III, a Delaware business trust (the "Trust").
WHEREAS, the Trust intends to issue its ___% Common Securities (the "Common
Securities") to, and purchase ___% Junior Subordinated Debentures (the
"Debentures") from, Dominion Resources, and to issue and sell its ___% Trust
Preferred Securities (the "Trust Preferred 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 ________, 2000, 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;
NOW, THEREFORE, in consideration of the purchase by each holder of the
Trust Preferred 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 Trust Preferred Securities the
amounts due such holders pursuant to the terms of the Trust Preferred
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.
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 Trust Preferred
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 Trust
<PAGE>
Preferred Securities or any Beneficiary must restore payment of any sums paid
under the Trust Preferred Securities, under any Obligation, under the Trust
Preferred Securities Guarantee Agreement dated the date hereof by Dominion
Resources 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.
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.
<PAGE>
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 Trust
Preferred 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 Trust Preferred 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 III
c/o Dominion Resources, Inc.
120 Tredegar Street
Richmond, VA 23219
Attention: Treasurer
[Telecopy No.: (804) 775-5819]
with a copy to:
Dominion Resources, Inc.
120 Tredegar 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).
<PAGE>
THIS AGREEMENT is executed as of the day and year first above written.
DOMINION RESOURCES, INC.
By: ___________________________________
Name:
Title:
DOMINION RESOURCES CAPITAL TRUST III
By: ___________________________________
as Administrative Trustee
<PAGE>
Exhibit 5(i)
[Letterhead of McGuire, Woods, Battle & Boothe LLP]
December 20, 1999
Board of Directors
Dominion Resources, Inc.
P.O. Box 26532
Richmond, Virginia 23261
Ladies and Gentlemen:
Reference is made to your Registration Statement on Form S-3 being filed
with the Securities and Exchange Commission (the Registration Statement) in
connection with the registration of up to U.S. $4,500,000,000 aggregate
principal amount of certain Senior Debt Securities, Junior Subordinated
Debentures, Trust Preferred Securities and Related Guarantees, Common Stock,
Preferred Stock, Stock Purchase Contracts and Stock Purchase Units
(collectively, the Securities) under the Securities Act of 1933, as amended (the
Securities Act). In connection with the offering of the Securities, you have
requested our opinion with respect to the matters set forth herein.
In connection with the delivery of this opinion, we have examined originals
or copies of the Restated Articles of Incorporation of the Company, as amended,
the Bylaws of the Company, the Registration Statement and the exhibits thereto,
certain resolutions adopted or to be adopted by the Board of Directors, an order
of the Securities and Exchange Commission (Release No. 35-27112; 70-9517) dated
December 15, 1999 authorizing various financing transactions and other matters,
the forms of certificates representing the Securities and such other records,
agreements, instruments, certificates and other documents of public officials,
the Company and its officers and representatives, and have made such inquiries
of the Company and its officers and representatives, as we have deemed necessary
or appropriate in connection with the opinions set forth herein. We are familiar
with the proceedings heretofore taken, and with the additional proceedings
proposed to be taken, by the Company in connection with the authorization,
registration, issuance and sale of the Securities. With respect to certain
factual matters, we have relied upon representations from, or certificates of,
officers of the Company. In making such examination and rendering the opinions
set forth below, we have assumed without verification the genuineness of all
signatures, the authenticity of all documents
<PAGE>
December 20, 1999
Page
submitted to us as originals, the authenticity of the originals of such
documents submitted to us as certified copies, the conformity to originals of
all documents submitted to us as copies, the authenticity of the originals of
such latter documents, that all documents submitted to us as certified copies
are true and correct copies of such originals and the legal capacity of all
individuals executing such documents.
Based on such examination and review, and subject to the foregoing, we are
of the opinion that
1. The Company is a corporation duly organized and validly existing under
the laws of the Commonwealth of Virginia, and has the corporate power to conduct
its business as now conducted and to issue the Securities of which the Company
is the issuer.
2. When the Registration Statement, as it may be amended, has become
effective under the Securities Act and any applicable state securities or Blue
Sky laws have been complied with, and upon issuance, delivery and payment
therefor in the manner contemplated by the Registration Statement, the
Securities of which the Company is the issuer will be validly issued, fully paid
and non-assessable and, to the extent that the Securities are debt securities of
the Company, they will be valid and binding obligations of the Company.
This opinion is limited to the laws of the United States of America, the
Commonwealth of Virginia and the State of New York, and we have not considered,
and we express no opinion as to, the laws of any other jurisdiction.
We consent to the inclusion of this opinion as an exhibit to the
Registration Statement and to the reference to our firm in the prospectus that
is a part of the Registration Statement, and in any supplements thereto. In
giving such consent, we do not hereby admit that we are in the category of
persons whose consent is required under Section 7 of the Securities Act of 1933.
Very truly yours,
/s/ McGuire, Woods, Battle & Boothe LLP
<PAGE>
Exhibit 5(ii)
[Letterhead of Richards, Layton & Finger]
December 20, 1999
Dominion Resources Capital Trust II
Dominion Resources Capital Trust III
c/o Dominion Resources, Inc.
120 Tredegar Street
Richmond, Virginia 23219
Re: Dominion Resources Capital Trust II & Dominion Resources
Capital Trust III
--------------------------------------------------------
Ladies and Gentlemen:
We have acted as special Delaware counsel for Dominion
Resources, Inc., a Virginia corporation (the "Company"), Dominion Resources
Capital Trust II, a Delaware business trust ("Trust II"), and Dominion Resources
Capital Trust III, a Delaware business trust ("Trust III"). Trust II and Trust
III are hereinafter collectively referred to as the "Trusts" and sometimes
hereinafter individually referred to as a "Trust"), in connection with the
matters set forth herein. At your request, this opinion is being furnished to
you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of Trust II, as filed with the
Secretary of State on December 17, 1999;
(b) The Certificate of Trust of Trust III, as filed with the
Secretary of State on December 17, 1999;
(c) The Trust Agreement of Trust II, dated as of December 17,
1999 among the Company and the trustees of Trust II named therein;
<PAGE>
(d) The Trust Agreement of Trust III, dated as of December 17,
1999 among the Company and the trustees of Trust III named therein;
(e) The Registration Statement (the "Registration Statement")
on Form S-3, including a preliminary prospectus with respect to the Trusts (the
"Prospectus"), relating to the Preferred Securities of the Trusts representing
undivided beneficial interests in the assets of the Trusts (each, a "Preferred
Security" and collectively, the "Preferred Securities"), in the form to be filed
by the Company and the Trusts with the Securities and Exchange Commission on or
about December 20, 1999;
(f) A form of Amended and Restated Trust Agreement for each of
the Trusts, to be entered into between the Company and the trustees of the Trust
named therein, (collectively, the "Trust Agreements" and individually, a "Trust
Agreement"), attached as an exhibit to the Registration Statement; and
(g) A Certificate of Good Standing for each of the Trusts,
dated December 20, 1999, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise
defined are used as defined in the Trust Agreements.
For purposes of this opinion, we have not reviewed any
documents other than the documents listed in paragraphs (a) through (g) above.
In particular, we have not reviewed any document (other than the documents
listed in paragraphs (a) through (g) above) that is referred to in or
incorporated by reference into the documents reviewed by us. We have assumed
that there exists no provision in any document that we have not reviewed that is
inconsistent with the opinions stated herein. We have conducted no independent
factual investigation of our own but rather have relied solely upon the
foregoing documents, the statements and information set forth therein and the
additional matters recited or assumed herein, all of which we have assumed to be
true, complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed
(i) the authenticity of all documents submitted to us as authentic originals,
(ii) the conformity with the originals of all documents submitted to us as
copies or forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that each of
the Trust Agreements will constitute the entire agreement among the parties
thereto with respect to the subject matter thereof, including with respect to
the creation, operation and termination of the applicable Trust, and that the
Trust Agreements and the Certificates of Trust will be in full force and effect
and will not be amended, (ii) except to the extent provided in paragraph 1
below, the due organization or due formation, as the case may be, and valid
existence in good standing of each party to the documents examined by us under
the laws of the jurisdiction governing its organization or formation, (iii) the
legal capacity of natural persons who are parties to the documents examined by
us, (iv) that each of the parties to the documents
<PAGE>
Dominion Resources Capital Trust II
Dominion Resources Capital Trust III
December 20, 1999
Page 3
examined by us has the power and authority to execute and deliver, and to
perform its obligations under, such documents, (v) the due authorization,
execution and delivery by all parties thereto of all documents examined by us,
(vi) the receipt by each Person to whom a Preferred Security is to be issued by
the Trusts (collectively, the "Preferred Security Holders") of a Preferred
Security Certificate for such Preferred Security and the payment for such
Preferred Security, in accordance with the Trust Agreements and the Registration
Statement, and (vii) that the Preferred Securities are authenticated, issued and
sold to the Preferred Security Holders in accordance with the Trust Agreements
and the Registration Statement. We have not participated in the preparation of
the Registration Statement or the Prospectus and assume no responsibility for
their contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder which are currently in effect.
Based upon the foregoing, and upon our examination of such
questions of law and statutes 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. Each of the Trusts has been duly created and is validly
existing in good standing as a business trust under the Business Trust Act.
2. The Preferred Securities of each Trust will represent valid
and, subject to the qualifications set forth in paragraph 3 below, fully paid
and nonassessable beneficial interests in the assets of the applicable Trust.
3. The Preferred Security Holders, as beneficial owners of the
applicable 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. We note that the Preferred
Security Holders may be obligated to make payments as set forth in the Trust
Agreements.
We consent to the filing of this opinion with the Securities
and Exchange Commission as an exhibit to the Registration Statement. We hereby
consent to the use of our name under the heading "Legal Opinions" in the
Prospectus. In giving the foregoing consents, we do not thereby admit that we
come within the category of persons whose consent is
<PAGE>
Dominion Resources Capital Trust II
Dominion Resources Capital Trust III
December 20, 1999
Page 4
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/ Richards Layton & Finger
EAM/wrm
<PAGE>
Exhibit 12
DOMINION RESOURCES, INC.
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(millions, except ratios)
<TABLE>
<CAPTION>
Twelve Months
Ended September 30, Twelve Months Ended December 31,
------------------------------------------------------------------
1999** 1998 1997* 1996 1995 1994
---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Net Income $ 287.4 $ 535.6 $ 399.2 $ 472.1 $ 425.0 $ 478.2
Add: Income Taxes 277.5 306.0 233.0 219.3 187.1 180.1
---------------------------------------------------------------------------------------
Total 564.9 841.6 632.2 691.4 612.1 658.3
---------------------------------------------------------------------------------------
Fixed Charges:
Interest charges 520.8 614.4 640.8 399.8 390.1 364.5
Estimated Interest Factor of
Rents Charged to Operating
Expenses, Clearings, and
Other Accounts 9.0 6.0 7.8 5.6 5.9 6.5
---------------------------------------------------------------------------------------
Total Fixed Charges 529.8 620.4 648.6 405.4 396.0 371.0
---------------------------------------------------------------------------------------
Earnings as Defined $ 1,094.7 $ 1,462.0 $ 1,280.8 $ 1,096.8 $ 1,008.1 $ 1,029.3
---------------------------------------------------------------------------------------
Ratio of Earnings to Fixed Charges 2.07 2.36 1.97 2.71 2.55 2.77
=======================================================================================
</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 U.K.
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
2.22x.
**Net income for the twelve months ended September 30, 1999 includes the one
time charge of $254.8 million for the write off of regulatory assets. Excluding
this charge from the calculation above results in a ratio of earnings to fixed
charges for the twelve months ended September 30, 1999 of 2.55x.
<PAGE>
Exhibit 23(iii)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Dominion Resources, Inc. on Form S-3 of our report dated February 8, 1999
(February 22, 1999 as to Note X) appearing in the Annual Report on Form 10-K of
Dominion Resources, Inc. for the year ended December 31, 1998, and to the
reference to us under the heading "Experts" in the Prospectus, which is part of
this Registration Statement.
/s/ Deloitte & Touche
Richmond, Virginia
December 20, 1999
<PAGE>
Exhibit 25(i)
-------------------------------------------------------------------
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.)
120 Tredegar Street
Richmond, VA 23219
(Address of principal executive offices) (Zip Code)
--------------------------------------------
Senior Debt 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. 333-76439, 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 13th day of December, 1999.
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 September 30, 1999, 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 .................................................... $ 13,497
Interest-bearing balances ............................................ 6,388
Securities:
Held to maturity securities ............................................... 798
Available for sale securities ............................................. 48,655
Federal funds sold and securities purchased under
agreements to resell ................................................. 30,373
Loans and lease financing receivables:
Loans and leases, net of unearned income ............ $132,392
Less: Allowance for loan and lease losses ........... 2,463
Less: Allocated transfer risk reserve ............... 0
--------
Loans and leases, net of unearned income,
allowance, and reserve ............................................... 129,929
Trading Assets ............................................................ 47,413
Premises and fixed assets (including capitalized
leases) .............................................................. 3,287
Other real estate owned
26
Investments in unconsolidated subsidiaries and
associated companies ................................................. 185
Customers' liability to this bank on acceptances
outstanding .......................................................... 716
Intangible assets ......................................................... 2,693
Other assets .............................................................. 15,430
------
TOTAL ASSETS .............................................................. $299,390
=========
</TABLE>
-4-
<PAGE>
<TABLE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits
In domestic offices .................................................. $100,324
Noninterest-bearing .......................................... $41,601
Interest-bearing ............................................. 58,723
------
In foreign offices, Edge and Agreement
subsidiaries and IBF's ............................................... 88,064
Noninterest-bearing ............................................ $ 6,363
Interest-bearing ........................................... 81,701
Federal funds purchased and securities sold under agree-
ments to repurchase ....................................................... 35,773
Demand notes issued to the U.S. Treasury .................................. 892
Trading liabilities ....................................................... 33,565
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less ........................ 4,434
With a remaining maturity of more than one year
through three years ........................................... 14
With a remaining maturity of more than three years ................. 97
Bank's liability on acceptances executed and outstanding .................. 716
Subordinated notes and debentures ......................................... 5,429
Other liabilities ......................................................... 11,457
TOTAL LIABILITIES ......................................................... 280,765
-------
EQUITY CAPITAL
Perpetual preferred stock and related surplus ............................. 0
Common stock .............................................................. 1,211
Surplus (exclude all surplus related to preferred stock) ................. 11,016
Undivided profits and capital reserves .................................... 7,333
Net unrealized holding gains (losses)
on available-for-sale securities .......................................... (951)
Accumulated net gains (losses) on cash flow hedges ........................ 0
Cumulative foreign currency translation adjustments ....................... 16
TOTAL EQUITY CAPITAL ...................................................... 18,625
-------
TOTAL LIABILITIES AND EQUITY CAPITAL ...................................... $299,390
========
</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 )
WILLIAM B. HARRISON, JR. ) DIRECTORS
SUSAN V. BERRESFORD )
-5-
<PAGE>
Exhibit 25(iii)
-------------------------------------------------------------------
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.)
120 Tredegar Street
Richmond, VA 23219
(Address of principal executive offices) (Zip Code)
-------------------------------------------------------------
Dominion Resources Capital Trust II
Trust Preferred Securities Guarantee
(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. 333-76439, 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 13th day of December, 1999.
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 September 30, 1999,
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 .................................................... $ 13,497
Interest-bearing balances ............................................ 6,388
Securities:
Held to maturity securities ............................................... 798
Available for sale securities ............................................. 48,655
Federal funds sold and securities purchased under
agreements to resell ................................................. 30,373
Loans and lease financing receivables:
Loans and leases, net of unearned income ............ $132,392
Less: Allowance for loan and lease losses ........... 2,463
Less: Allocated transfer risk reserve ............... 0
Loans and leases, net of unearned income, --------
allowance, and reserve ............................................... 129,929
Trading Assets ............................................................ 47,413
Premises and fixed assets (including capitalized
leases) .............................................................. 3,287
Other real estate owned ................................................... 26
Investments in unconsolidated subsidiaries and
associated companies ................................................. 185
Customers' liability to this bank on acceptances
outstanding .......................................................... 716
Intangible assets ......................................................... 2,693
Other assets .............................................................. 15,430
-------
TOTAL ASSETS .............................................................. $299,390
==========
</TABLE>
-4-
<PAGE>
<TABLE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits
In domestic offices .......................................... $100,324
Noninterest-bearing ...................................$41,601
Interest-bearing ...................................... 58,723
------
In foreign offices, Edge and Agreement
subsidiaries and IBF's ....................................... 88,064
Noninterest-bearing ......................................$ 6,363
Interest-bearing ................................... 81,701
Federal funds purchased and securities sold under agree-
ments to repurchase ............................................... 35,773
Demand notes issued to the U.S. Treasury .......................... 892
Trading liabilities ............................................... 33,565
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less ................ 4,434
With a remaining maturity of more than one year
through three years ..................................... 14
With a remaining maturity of more than three years ........... 97
Bank's liability on acceptances executed and outstanding .......... 716
Subordinated notes and debentures ................................. 5,429
Other liabilities ................................................. 11,457
TOTAL LIABILITIES ................................................. 280,765
-------
EQUITY CAPITAL
Perpetual preferred stock and related surplus ..................... 0
Common stock ...................................................... 1,211
Surplus (exclude all surplus related to preferred stock) ......... 11,016
Undivided profits and capital reserves ............................ 7,333
Net unrealized holding gains (losses)
on available-for-sale securities .................................. (951)
Accumulated net gains (losses) on cash flow hedges ................ 0
Cumulative foreign currency translation adjustments ............... 16
TOTAL EQUITY CAPITAL .............................................. 18,625
-------
TOTAL LIABILITIES AND EQUITY CAPITAL .............................. $299,390
===========
</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 )
WILLIAM B. HARRISON, JR. ) DIRECTORS
SUSAN V. BERRESFORD )
-5-
<PAGE>
Exhibit 25(iv)
-------------------------------------------------------------------
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 II
(Exact name of obligor as specified in its charter)
Virginia Applied For
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
120 Tredegar Street
Richmond, VA 23219
(Address of principal executive offices) (Zip Code)
-------------------------------------------------------------------
Trust Preferred 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. 333-76439, 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 13th day of December, 1999.
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 September 30, 1999,
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 .................................................... $ 13,497
Interest-bearing balances ............................................ 6,388
Securities:
Held to maturity securities ............................................... 798
Available for sale securities ............................................. 48,655
Federal funds sold and securities purchased under
agreements to resell ................................................. 30,373
Loans and lease financing receivables:
Loans and leases, net of unearned income ............ $132,392
Less: Allowance for loan and lease losses ........... 2,463
Less: Allocated transfer risk reserve ............... 0
--------
Loans and leases, net of unearned income,
allowance, and reserve ............................................... 129,929
Trading Assets ............................................................ 47,413
Premises and fixed assets (including capitalized
leases) .............................................................. 3,287
Other real estate owned ................................................... 26
Investments in unconsolidated subsidiaries and
associated companies ................................................. 185
Customers' liability to this bank on acceptances
outstanding .......................................................... 716
Intangible assets ......................................................... 2,693
Other assets .............................................................. 15,430
------
TOTAL ASSETS .............................................................. $299,390
=========
</TABLE>
-4-
<PAGE>
<TABLE>
<CAPTION>
LIABILITIES
<S> <C> <C>
Deposits
In domestic offices .................................................. $100,324
Noninterest-bearing ........................................ $ 41,601
Interest-bearing ........................................... 58,723
------
In foreign offices, Edge and Agreement
subsidiaries and IBF's ............................................... 88,064
Noninterest-bearing ............................................$ 6,363
Interest-bearing .......................................... 81,701
Federal funds purchased and securities sold under agree-
ments to repurchase ....................................................... 35,773
Demand notes issued to the U.S. Treasury .................................. 892
Trading liabilities ....................................................... 33,565
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less ........................ 4,434
With a remaining maturity of more than one year
through three years ........................................... 14
With a remaining maturity of more than three years ................. 97
Bank's liability on acceptances executed and outstanding .................. 716
Subordinated notes and debentures ......................................... 5,429
Other liabilities ......................................................... 11,457
TOTAL LIABILITIES ......................................................... 280,765
-------
<CAPTION>
EQUITY CAPITAL
<S> <C>
Perpetual preferred stock and related surplus ............................. 0
Common stock .............................................................. 1,211
Surplus (exclude all surplus related to preferred stock) ................. 11,016
Undivided profits and capital reserves .................................... 7,333
Net unrealized holding gains (losses)
on available-for-sale securities .......................................... (951)
Accumulated net gains (losses) on cash flow hedges ........................ 0
Cumulative foreign currency translation adjustments ....................... 16
TOTAL EQUITY CAPITAL ...................................................... 18,625
-------
TOTAL LIABILITIES AND EQUITY CAPITAL ...................................... $299,390
=========
</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 )
WILLIAM B. HARRISON, JR. ) DIRECTORS
SUSAN V. BERRESFORD )
-5-
<PAGE>
Exhibit 25(v)
-------------------------------------------------------------------
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.)
120 Tredegar Street
Richmond, VA 23219
(Address of principal executive offices) (Zip Code)
--------------------------------------------------
Dominion Resources Capital Trust III
Trust Preferred Securities Guarantee
(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. 333-76439, 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 13th day of December, 1999.
THE CHASE MANHATTAN BANK
By /s/ P. Kelly
-------------------------
/s/ 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 September 30, 1999,
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> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin .................................................... $ 13,497
Interest-bearing balances ............................................ 6,388
Securities:
Held to maturity securities ............................................... 798
Available for sale securities ............................................. 48,655
Federal funds sold and securities purchased under
agreements to resell ................................................. 30,373
Loans and lease financing receivables:
Loans and leases, net of unearned income ............ $132,392
Less: Allowance for loan and lease losses ........... 2,463
Less: Allocated transfer risk reserve ............... 0
--------
Loans and leases, net of unearned income,
allowance, and reserve ............................................... 129,929
Trading Assets ............................................................ 47,413
Premises and fixed assets (including capitalized
leases) .............................................................. 3,287
Other real estate owned ................................................... 26
Investments in unconsolidated subsidiaries and
associated companies ................................................. 185
Customers' liability to this bank on acceptances
outstanding .......................................................... 716
Intangible assets ......................................................... 2,693
Other assets .............................................................. 15,430
------
TOTAL ASSETS .............................................................. $299,390
=========
</TABLE>
-4-
<PAGE>
<TABLE>
<CAPTION>
LIABILITIES
<S> <C> <C>
Deposits
In domestic offices .................................................. $100,324
Noninterest-bearing ........................................$ 41,601
Interest-bearing ........................................... 58,723
------
In foreign offices, Edge and Agreement
subsidiaries and IBF's ............................................... 88,064
Noninterest-bearing .......................................... $ 6,363
Interest-bearing ........................................ 81,701
Federal funds purchased and securities sold under agree-
ments to repurchase ....................................................... 35,773
Demand notes issued to the U.S. Treasury .................................. 892
Trading liabilities ....................................................... 33,565
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less ........................ 4,434
With a remaining maturity of more than one year
through three years ............................................. 14
With a remaining maturity of more than three years ................... 97
Bank's liability on acceptances executed and outstanding .................. 716
Subordinated notes and debentures ......................................... 5,429
Other liabilities ......................................................... 11,457
TOTAL LIABILITIES ......................................................... 280,765
-------
<CAPTION>
EQUITY CAPITAL
<S> <C>
Perpetual preferred stock and related surplus ............................. 0
Common stock .............................................................. 1,211
Surplus (exclude all surplus related to preferred stock) ................. 11,016
Undivided profits and capital reserves .................................... 7,333
Net unrealized holding gains (losses)
on available-for-sale securities .......................................... (951)
Accumulated net gains (losses) on cash flow hedges ........................ 0
Cumulative foreign currency translation adjustments ....................... 16
TOTAL EQUITY CAPITAL ...................................................... 18,625
-------
TOTAL LIABILITIES AND EQUITY CAPITAL ...................................... $299,390
=========
</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 )
WILLIAM B. HARRISON, JR. ) DIRECTORS
SUSAN V. BERRESFORD )
-5-
<PAGE>
Exhibit 25(vi)
-------------------------------------------------------------------
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 III
(Exact name of obligor as specified in its charter)
Virginia Applied For
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
120 Tredegar Street
Richmond, VA 23219
(Address of principal executive offices) (Zip Code)
--------------------------------------------
Trust Preferred 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. 333-76439, 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 13th day of December, 1999.
THE CHASE MANHATTAN BANK
By /s/ P. Kelly
---------------------
/s/ 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 September 30, 1999, 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 .................................................... $ 13,497
Interest-bearing balances ............................................ 6,388
Securities:
Held to maturity securities ............................................... 798
Available for sale securities ............................................. 48,655
Federal funds sold and securities purchased under
agreements to resell ................................................. 30,373
Loans and lease financing receivables:
Loans and leases, net of unearned income ............ $132,392
Less: Allowance for loan and lease losses ........... 2,463
Less: Allocated transfer risk reserve ............... 0
--------
Loans and leases, net of unearned income,
allowance, and reserve ............................................... 129,929
Trading Assets ............................................................ 47,413
Premises and fixed assets (including capitalized
leases) .............................................................. 3,287
Other real estate owned ................................................... 26
Investments in unconsolidated subsidiaries and
associated companies ................................................. 185
Customers' liability to this bank on acceptances
outstanding .......................................................... 716
Intangible assets ......................................................... 2,693
Other assets .............................................................. 15,430
-------
TOTAL ASSETS .............................................................. $299,390
========
</TABLE>
-4-
<PAGE>
<TABLE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits
In domestic offices .................................................. $100,324
Noninterest-bearing ......................... $41,601
Interest-bearing ............................. 58,723
------
In foreign offices, Edge and Agreement
subsidiaries and IBF's ............................................... 88,064
Noninterest-bearing ............................$ 6,363
Interest-bearing .......................... 81,701
Federal funds purchased and securities sold under agree-
ments to repurchase ....................................................... 35,773
Demand notes issued to the U.S. Treasury .................................. 892
Trading liabilities ....................................................... 33,565
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less ........................ 4,434
With a remaining maturity of more than one year
through three years ........................................... 14
With a remaining maturity of more than three years ................. 97
Bank's liability on acceptances executed and outstanding .................. 716
Subordinated notes and debentures ......................................... 5,429
Other liabilities ......................................................... 11,457
TOTAL LIABILITIES ......................................................... 280,765
-------
EQUITY CAPITAL
Perpetual preferred stock and related surplus ............................. 0
Common stock .............................................................. 1,211
Surplus (exclude all surplus related to preferred stock) ................. 11,016
Undivided profits and capital reserves .................................... 7,333
Net unrealized holding gains (losses)
on available-for-sale securities .......................................... (951)
Accumulated net gains (losses) on cash flow hedges ........................ 0
Cumulative foreign currency translation adjustments ....................... 16
TOTAL EQUITY CAPITAL ...................................................... 18,625
-------
TOTAL LIABILITIES AND EQUITY CAPITAL ...................................... $299,390
==========
</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 )
WILLIAM B. HARRISON, JR. ) DIRECTORS
SUSAN V. BERRESFORD )
-5-
