EXHIBIT 4.11
AMENDED AND RESTATED TRUST AGREEMENT
OF DOMINION RESOURCES CAPITAL TRUST II
By and Among
DOMINION RESOURCES, INC.
as Sponsor,
THE CHASE MANHATTAN BANK
as Property Trustee,
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION,
as Delaware Trustee,
and
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
Dated as of January 1, 2001
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.
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TABLE OF CONTENTS
ARTICLE 1 INTERPRETATIONS 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 Events; 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.................................. 20
Section 3.10 Certain Rights of Property Trustee........................................................... 21
Section 3.11 Delaware Trustee............................................................................. 24
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............................................................................ 25
Section 3.15 Mergers...................................................................................... 25
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 Fees and Expenses of the Trustees............................................................ 28
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............................................................................................. 29
Section 6.1 Number of Trustees........................................................................... 29
Section 6.2 Delaware Trustee; Eligibility................................................................ 29
Section 6.3 Property Trustee; Eligibility................................................................ 29
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.......................................................................... 33
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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................................................................................ 36
Section 7.3 Redemption of Securities..................................................................... 38
Section 7.4 Redemption Procedures........................................................................ 38
Section 7.5 Voting Rights of Trust Preferred Securities.................................................. 40
Section 7.6 Voting Rights of Common Securities........................................................... 42
Section 7.7 Paying Agent................................................................................. 43
Section 7.8 Listing...................................................................................... 44
Section 7.9 Transfer of Securities....................................................................... 44
Section 7.10 Mutilated, Destroyed, Lost or Stolen Certificates............................................ 45
Section 7.11 Deemed Security Holders...................................................................... 46
Section 7.12 Global Securities............................................................................ 46
Section 7.13 [INTENTIONALLY OMITTED]...................................................................... 48
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........................ 50
Section 9.1 Liability.................................................................................... 50
Section 9.2 Exculpation.................................................................................. 50
Section 9.3 Fiduciary Duty............................................................................... 51
Section 9.4 Indemnification.............................................................................. 52
Section 9.5 Outside Businesses........................................................................... 54
ARTICLE 10 ACCOUNTING.......................................................................................... 55
Section 10.1 Fiscal Year.................................................................................. 55
Section 10.2 Certain Accounting Matters................................................................... 55
Section 10.3 Banking...................................................................................... 55
Section 10.4 Withholding.................................................................................. 55
ARTICLE 11 AMENDMENTS AND MEETINGS............................................................................. 56
Section 11.1 Amendments................................................................................... 56
Section 11.2 Meetings of the Holders of Securities; Action by Written Consent............................. 58
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....................................................................................... 61
Section 13.1 Notices...................................................................................... 61
Section 13.2 Governing Law................................................................................ 62
Section 13.3 Intention of the Parties..................................................................... 62
Section 13.4 Headings..................................................................................... 62
Section 13.5 Successors and Assigns....................................................................... 62
Section 13.6 Partial Enforceability....................................................................... 62
Section 13.7 Counterparts................................................................................. 62
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EXHIBITS
--------
EXHIBIT A FORM OF TRUST 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 OF DOMINION RESOURCES CAPITAL
TRUST II (the "Trust Agreement"), dated as of January 1, 2001, 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) Chase Manhattan Bank USA, National
Association (as successor to Chase Manhattan Bank Delaware), as initial Delaware
Trustee, and (c) G. ▇▇▇▇▇ ▇▇▇▇▇▇, an individual, and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, an
individual, each of whose address is ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ (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 II (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
INTERPRETATIONS AND DEFINITIONS
Section 1.1 Interpretation and Definitions. Unless the context otherwise
------------------------------
requires:
(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;
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(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:
"Additional Tax Sums" has the meaning specified in Section 4.8 of the
Indenture.
"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 who 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
(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
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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 Trust Preferred Securities represented by a
Global Security, the Person who acquires an interest in the Trust Preferred
Securities which is reflected on the records of the Depositary through the
Depositary Participants.
"Business Day" means any day, other than (i) a Saturday or Sunday, (ii) a
day on which banking institutions in the Borough of Manhattan, The City of New
York, or Richmond, Virginia are authorized or required by law, regulation or
executive order to close, or (iii) a day on which the Corporate Trust Office or
the Indenture Trustee's principal corporate office is closed for business.
"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.
"Certificate" means a Common Security Certificate or a Trust Preferred
Security Certificate.
"Certificate of Trust" has the meaning specified in the Recitals hereto.
"Closing Date" means the date or dates on which the Trust Preferred
Securities are issued and sold.
"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.
"Common Security" has the meaning specified in Section 7.1.
"Common Security Certificate" means a definitive certificate in fully
registered form representing one or more Common Securities, 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.
3
"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 ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇/▇▇/ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention:
Institutional Trust 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 8.4% Junior Subordinated Debentures due January
30, 2041 to be issued, from time to time, by the Debenture Issuer under the
Indenture.
"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.
"Delaware Trustee" means the Trustee meeting the eligibility requirements
set forth in Section 6.2.
"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.
"Global Security" means a fully registered, global Trust Preferred Security
Certificate.
"Guarantee" means the Trust Preferred Securities Guarantee Agreement, dated
as of January 17, 2001, of the Sponsor in respect of the Securities.
4
"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 Trust 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 Trust
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 Trust 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, as
previously supplemented and amended and as further supplemented and amended by
the Second Supplemental Indenture dated as of January 1, 2001 (the "Second
Supplemental Indenture"), 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"), there is more than an insubstantial risk
that 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).
"Liquidation Amount" means the stated amount of $25 per Trust Preferred
Security.
"List of Holders" has the meaning specified in Section 2.2(a).
5
"Majority in Liquidation Amount" means, except as provided in the terms of
the Trust 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 Trust 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.
"Officers' Certificate" means, with respect to any Person, a certificate
signed on behalf of such Person by two Authorized Officers of such Person. To
the extent applicable, such certificate will also specify procedures, acceptable
to the Property Trustee, regarding the issuance of a Tranche of Securities. 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.
"Paying Agent" has the meaning specified in Section 7.7.
"Payment Amount" has the meaning specified in Section 7.2(c).
"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).
6
"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.
"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 Liquidation Amount of the Securities to 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 Trust Preferred
Securities.
"Securities Act" means the Securities Act of 1933, as amended from time to
time, or any successor legislation.
"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).
7
"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, pronouncement or action, or judicial
decision interpreting or applying such laws or regulations, which amendment or
change is effective or which proposed change, pronouncement, decision or action
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 to the Trust 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 a material amount of
other taxes, duties or other governmental charges.
"10% in Liquidation Amount" means, except as provided in the terms of the
Trust 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 Trust 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.
"Tranche" means Securities issued after the initial Closing Date which are
of the same series as the Securities and have identical terms as the Securities,
except for aggregate amount, the price at which such Securities are sold to the
public and the date of issuance.
"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).
"Trust Enforcement Event" in respect of the Securities means (i) an
Indenture Event of Default has occurred and is continuing in respect of the
Debentures or (ii) the voluntary or involuntary dissolution, winding up or
termination of the Trust, except in connection with (A) the distribution of the
Debentures to the holders of the Securities, (B) the redemption of all of the
Securities and (C) mergers, consolidations or amalgamations of the Trust
permitted by this Trust Agreement.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended
from time to time, or any successor legislation.
8
"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.
"Trust Preferred Security" has the meaning specified in Section 7.1.
"Trust Preferred Security Certificate" means a definitive certificate in
fully registered form representing one or more Trust Preferred Securities,
substantially in the form of Exhibit A.
"Trust Property" means (i) the Debentures, (ii) any cash on deposit in, or
owing to the Property Account (as defined in Section 3.8(c)(i) herein) and (iii)
all proceeds and rights in respect of the foregoing and any other property and
assets for the time being held or deemed to be held by the Property Trustee
pursuant to this Agreement.
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 that 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 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 Trust 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
9
("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 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 initial issuance of
the Trust Preferred Securities), the Property Trustee shall provide to the
Holders of the Trust 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 Trust
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 Trust
Preferred Securities may, by vote or written consent, on behalf of the
Holders of all of the Trust Preferred Securities, waive any past Trust
Enforcement Event in respect of the Trust 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 Trust 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 Trust Preferred Securities arising therefrom shall be deemed to have been
cured, for every purpose of this Trust Agreement and the Trust Preferred
Securities, but no such waiver shall extend to any subsequent or other Trust
Enforcement Event with respect to the Trust Preferred Securities or impair any
right consequent thereon. Any waiver by the Holders of the Trust Preferred
Securities of a Trust Enforcement Event with respect to the Trust 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 Trust Preferred Securities have been cured, waived or
otherwise eliminated, and until
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such 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 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 Trust Preferred Securities
constitutes a waiver of the corresponding Trust Enforcement Event with
respect to the Trust 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
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of the Property Trustee charged with the administration of this Trust
Agreement shall have actual knowledge.
ARTICLE 3
ORGANIZATION
Section 3.1 Name and Organization. The Trust hereby continued is named
---------------------
"Dominion Resources Capital Trust II" 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., ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ , ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. 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, including, from time to time, Tranches
thereof, and use the gross proceeds from such sales 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 Trust 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.
(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
13
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 the Trust Property
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. The Property Trustee hereby declares that
it will hold the Trust Property in trust upon and subject to the conditions set
forth herein for the benefit of the Trust and the holders of the Securities.
Section 3.6 Powers and Duties of the Administrative Trustees. The
------------------------------------------------
Administrative Trustees shall have, except to the extent expressly provided
below, the exclusive power, duty and authority to cause the Trust to engage in
the following activities:
(a) issue and sell the Trust Preferred Securities (including, from
time to time, Tranches thereof) and the Common Securities (including, from
time to time, Tranches thereof) in accordance with this Trust Agreement;
provided, however, that the Trust may issue no more than one series of
Trust 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 the issuance of Securities (including
Tranches) shall be limited to simultaneous issuances of both Trust
Preferred Securities and Common Securities on each Closing Date.
(b) in connection with each issue and sale of the Trust 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 (if necessary) of any Trust
Preferred Securities, the Guarantee and the Debentures; provided,
however, that the Sponsor shall also have the authority to execute and
file any such application;
(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 Trust
Preferred Securities, the Guarantee and the Debentures; provided,
however, that the Sponsor shall also have the authority to execute and
file any such registration statement or amendments; and
14
(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 Trust Preferred
Securities in any State in which the Sponsor has determined to qualify
or register such Trust Preferred Securities for sale; provided,
however, that the Sponsor shall also have the authority to execute and
file any such documents or take such acts;
(c) to acquire the Debentures with the proceeds of each sale of the
Trust 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 Trust 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
Trustees 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 Trust 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;
15
(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 Trust 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;
(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; and
(r) to cause to be delivered to the Property Trustee an Officers'
Certificate with respect to each issuance of a Tranche of Securities.
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.
16
Any expenses incurred by the Administrative Trustees pursuant to this
Section 3.6 shall be reimbursed by the Debenture Issuer.
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 Property;
(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
17
(x) revoke any action previously authorized or approved by
vote of the Holders of the Trust Preferred Securities except pursuant
to a subsequent vote of the Holders of the Trust Preferred Securities.
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 Trust 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 Trust 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 Trust
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.
18
(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, if the Property Trustee
fails to enforce its rights under this Trust Agreement or the Indenture to
the fullest extent permitted by law and subject to the terms of this Trust
Agreement and the Indenture, then a Holder of Trust Preferred Securities
may directly institute a proceeding against the Debenture Issuer to enforce
the Property Trustee's rights under this Trust Agreement or the Indenture
without first instituting a legal proceeding against the Property Trustee
or any other person; provided, further, 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 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 Trust 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 Trust 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
Trust 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 Trust 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) 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
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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 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, in good faith in
accordance with the direction
20
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;
(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;
21
(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 re-recording, refiling or registration
thereof;
(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 reasonable 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;
22
(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 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 Property 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 reasonable 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 Trust
Preferred Securities; and
23
(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 USA, National Association, or any
Successor Delaware Trustee, are executed and delivered not in its individual
capacity but solely as Delaware Trustee under this Trust 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 USA, National Association,
or any Successor Delaware Trustee, 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 USA, National Association, or any
Successor Delaware Trustee, 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
24
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.
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(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:
(A) expressly assumes all of the obligations of the Trust
with respect to the Securities; or
(B) substitutes for the Trust Preferred Securities other
securities having substantially the same terms as the Trust
Preferred Securities (the "Successor Securities") so long as the
Successor Securities rank the same as the Trust 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 Trust 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 Trust Preferred Securities are
then listed or quoted;
(iv) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not cause the Trust 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 Trust Preferred
Securities (including any
25
Successor Securities) in any material respect; other than with respect
to any dilution of the Holders' interest in the new entity;
(vi) such Successor Entity has a purpose substantially
identical to that of the Trust;
(vii) prior to such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease the 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 Trust
Preferred Securities (including any Successor Securities) in any
material respect; other than with respect to any dilution of the
Holders' interest in the new entity;
(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
(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, in the opinion of a
nationally recognized tax counsel experienced in such matters, 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
26
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 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 Trust Preferred Securities (including, from time to time,
Tranches thereof), 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
Trust 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 Trust 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
27
by the Trust, as the Sponsor deems necessary or advisable in order to
comply with the applicable laws of any such States;
(c) if deemed necessary by the underwriter of the Trust Preferred
Securities, 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 Trust
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 each
sale of the Trust Preferred Securities.
Section 4.2 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); and
(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 gross negligence or bad faith.
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. In
------------------------------------------------
accordance with Section 7.1(a), on each 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 Trust Preferred Securities issued on such Closing Date are
sold.
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
-----------------------------------------
Trust 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
28
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
------------------
four, and:
(a) at any time before the initial issuance of Securities, the
Sponsor may, by written instrument, increase or decrease the number of
Trustees; and
(b) after the initial issuance of 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
29
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.
(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 Agreements of
Dominion Resources Capital Trust I and Dominion Resources Capital Trust III
dated as of December 8, 1997 and January 1, 2001, respectively, among the
Sponsor, The Chase Manhattan Bank, as Property Trustee, Chase Manhattan
Bank USA, National Association (successor to Chase Manhattan Bank
Delaware), as Delaware Trustee and the Administrators or Administrative
Trustees named therein, and the Capital Securities Guarantee Agreements
dated as of December 8, 1997 and January 12, 2001, 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: G. ▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, the business address of
each of whom is c/o Dominion Resources, Inc., ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
Section 6.6 Appointment, Removal and Resignation of Trustees.
------------------------------------------------
(a) Subject to Section 6.6(b), Trustees may be appointed or removed
with or without cause at any time:
(i) until the initial issuance of Securities, by written
instrument executed by the Sponsor;
30
(ii) after the initial issuance of 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
or by written consent in lieu of such meeting; and;
(iii) after the initial issuance of the Trust Preferred
Securities and the occurrence of an Indenture Event of Default, by
vote of the Holders of a Majority in Liquidation Amount of the Trust
Preferred Securities; provided, however, that the Administrative
Trustees may still be appointed or removed with or 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 or by written consent in lieu of such
meeting; 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
31
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 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
32
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 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.
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(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.
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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.
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(a) The Administrative Trustees shall on behalf of the Trust 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) Trust Preferred Securities. On the initial Closing Date, an
Administrative Trustee, on behalf of the Trust, shall execute and
deliver to the
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underwriters named in the underwriting agreement relating to such
Trust Preferred Securities, a Trust Preferred Securities Certificate
or Certificates, registered in the name of the initial Depositary or
its nominee, in an initial aggregate amount of 12,000,000 Trust
Preferred Securities against receipt of the purchase price specified
in the underwriting agreement. The Trust Preferred Securities issued
on the initial Closing Date shall have an aggregate Liquidation Amount
with respect to the assets of the Trust of Three Hundred Million
dollars ($300,000,000). Pursuant to the procedures established in an
Officers' Certificate, the Trust may subsequently issue from time to
time Tranches of Trust Preferred Securities. The Trust Preferred
Securities and any subsequent Tranches thereof are hereby designated
for identification purposes only as "Dominion Resources Capital Trust
II 8.4% Trust Preferred Securities" (the "Trust Preferred
Securities"). The Trust Preferred Security Certificates evidencing the
Trust 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 Trust Preferred Securities are listed or quoted.
(ii) Common Securities. On the initial Closing Date, an
Administrative Trustee, on behalf of the Trust, shall execute and
deliver to the Sponsor Common Securities Certificates, registered in
the name of the Sponsor, in an initial aggregate amount of 371,135
Common Securities against payment by the Sponsor of Nine Million Two
Hundred Seventy-Eight Thousand Three Hundred Seventy-Five dollars
($9,278,375). The Common Securities issued on the initial Closing Date
shall have an initial aggregate Liquidation Amount with respect to the
assets of the Trust of Nine Million Two Hundred Seventy-Eight Thousand
Three Hundred Seventy-Five dollars ($9,278,375). Pursuant to the
procedures established in an Officers' Certificate, the Trust may
subsequently issue from time to time Tranches of Common Securities.
The Common Securities and any subsequent Tranches thereof are hereby
designated for identification purposes only as "Dominion Resources
Capital Trust II 8.4% Common Securities" (the "Common Securities" and,
together with the Trust 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.
(iii) On the initial Closing Date, an Administrative Trustee, on
behalf of the Trust, shall subscribe to and purchase from the Sponsor
Debentures, registered in the name of the Property Trustee, on behalf
of the Trust and the Holders and having an initial aggregate principal
amount equal to $309,278,375. To the extent subsequent Tranches of
Securities are issued, an Administrative Trustee, on behalf of the
Trust, shall subscribe to and purchase from the Sponsor on subsequent
Closing Dates additional Debentures, registered in the name of the
Property Trustee, on behalf of the Trust and the Holders having an
aggregate
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principal amount equal to the aggregate Liquidation Amount of such
Tranches of Securities.
(b) Payment of Distributions on, and payment of the Redemption Price
upon a redemption of, the Trust Preferred Securities and the Common
Securities, as applicable, shall be made Pro Rata based on the Liquidation
Amount of such Trust 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 Trust 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 Trust 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 Trust
Preferred Securities then due and payable. The Trust shall issue no
securities or other interests in the assets of the Trust other than the
Trust 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 any person who, at the
actual date of execution of such Certificate, shall be an Administrative
Trustee of the Trust, although at the date of the execution and delivery of
the Trust Agreement such person was not such an 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 an Administrative Trustee's 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 Trust 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 Trust 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 (i) concurrently with the initial issuance of the
Securities, authenticate the
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Certificates representing Trust Preferred Securities for original issue to be
issued at that time and (ii) concurrently with each periodic issuance of
Tranches, evidence the current number of outstanding Trust Preferred Securities
by endorsing Schedule A to each Certificate therefor.
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 each 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 each
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 Trust
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.
(h) To the extent the Trust issues additional Tranches, (A) the
Property Trustee shall (i) increase the number of Trust Preferred
Securities evidenced by each Certificate therefor by appropriate
endorsement on Schedule A to each such Certificate and (ii) instruct the
Depositary to credit the account of the purchaser of the Tranche of Trust
Preferred Securities and (B) an Administrative Trustee shall increase the
number of Common Securities evidenced by each Certificate therefor by
appropriate endorsement on Schedule A to each such Certificate.
Section 7.2 Distributions.
-------------
(a) Holders of Securities shall be entitled to receive cumulative cash
Distributions at the rate per annum of 8.4% of the stated Liquidation
Amount of $25 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 Trust Preferred Securities and the Common Securities on a Pro
Rata basis. Except in the event that the Sponsor exercises its right to
extend the interest payment period for the Debentures pursuant to Article
IV of the Second Supplemental Indenture (an "Exclusion Period"),
36
Distributions on the Securities shall, from the date of original issue,
accrue and be cumulative and shall be payable quarterly, in arrears, on the
30th day of each January, April, July and October, commencing April 30,
2001, 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 (including interest payable on unpaid interest at
the percentage rate per annum set forth above, to the extent permitted by
applicable law) quarterly at the rate of 8.4% per annum ("Compounded
Distributions"). "Distributions" shall mean ordinary cumulative
distributions together with any Compounded Distributions or any payment of
Additional Tax Sums.
(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 or any payment of Additional Tax Sums (the amount of any such
payments 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 Trust 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 Trust Preferred Securities. If the Trust Preferred
Securities shall not continue to remain represented by one or more Global
Securities, the relevant record dates for the Trust Preferred Securities
shall be selected by the Administrative Trustees and shall be more than 14
days but no less than 60 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 immediately preceding day which is a
Business Day, in each case with the same force and effect as if made on
such payment date.
37
(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.
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 or acceleration 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 20 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 Trust Preferred Securities will be
redeemed Pro Rata (subject to Section 7.1(b)) and the Trust 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
38
on all Securities then outstanding. For all purposes of this Trust
Agreement, unless the context otherwise requires, all provisions relating
to the redemption of Trust Preferred Securities shall relate, in the case
of any Trust Preferred Security redeemed or to be redeemed only in part, to
the portion of the aggregate Liquidation Amount of Trust Preferred
Securities which has been or is to be redeemed.
(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 Trust Preferred Securities represented by one or more
Global Securities, by 2:00 p.m., 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 Trust Preferred Securities and will
give the Depositary irrevocable instructions and authority to pay the
Redemption Price to the Holders of the Trust 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 immediately
preceding Business Day, in each case with the same force and effect as if
made on such date fixed for redemption. 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.
39
(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
Trust Preferred Securities by tender, in the open market or by private
agreement.
Section 7.5 Voting Rights of Trust Preferred Securities.
-------------------------------------------
(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 Trust 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 Trust 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 (iii)
waive any past default and its consequences that is waivable under Section
6.6 of the Indenture or (iv) cancel an acceleration of the principal of the
Debentures; 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 Trust 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 Trust 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 Trust 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 Trust Preferred Securities has made a written
request, such Holder of Trust 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
40
any interest, principal or other required payments when due under the
Indenture, then a Holder of Trust 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 Trust 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 clauses 7.5(b)(i) and (ii) above unless the
Property Trustee 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 Trust Preferred
Securities may be given at a separate meeting of Holders of Trust 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 Trust Preferred
Securities are entitled to vote to be mailed to each Holder of record of
Trust 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.
41
(h) No vote or consent of the Holders of Trust Preferred Securities
shall be required for the Trust to redeem and cancel Trust Preferred
Securities or distribute Debentures in accordance with this Trust Agreement
and the terms of the Securities.
(i) Notwithstanding that Holders of Trust 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 Trust Preferred Securities may vote or consent with respect to
such pledged Trust Preferred Securities under any of the circumstances
described herein.
(j) Subject to Sections 6.6(a) and 7.5(k), Holders of the Trust
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 Liquidation
Amount of the Common Securities to appoint or remove Administrative
Trustees as provided in Section 6.6(a)(iii), if 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 Trust 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 Trust 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
42
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 clauses
7.6(c)(i) and (ii) above unless the Property Trustee has obtained an
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. The Trust shall maintain in the Borough of
------------
Manhattan, City of New York, State of New York, an office or agency where the
Trust Preferred Securities
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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. The Sponsor shall use its best efforts to cause the
-------
Trust 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, Trust 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 Trust Preferred Securities and of transfers
of Trust Preferred Securities. The Property Trustee is hereby appointed
"Security Registrar" for the purpose of registering Trust Preferred
Securities and transfers of Trust 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 Trust 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.
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(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 Trust 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 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 Trust 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
45
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. The Trust Preferred Securities may be
-----------------
issued in the form of one or more Global Securities. If the Trust 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 Trust 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 Trust 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 Trust Preferred
Security is exchangeable for Trust 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 Trust Preferred Security (other than a transfer of this Trust
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 Trust Preferred Security Certificate is presented by an
authorized representative of the Depositary to Dominion Resources Capital
Trust II or its agent for registration of transfer, exchange or payment,
and any Trust 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."
Trust 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
46
indirect participants or otherwise, shall instruct the Property Trustee. Upon
execution and authentication, the Property Trustee shall deliver such Trust
Preferred Securities not represented by a Global Security to the Persons in
whose names such definitive Trust 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 Trust Preferred Securities not represented by a
Global Security, redeemed, cancelled or transferred to a transferee who receives
Trust Preferred Securities not represented by a Global Security therefor or any
Trust 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 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 Trust 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
Trust 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 Trust Preferred Securities in excess of those held in the name of the
Depositary or its nominee.
If at any time the Depositary for any Trust Preferred Securities
represented by one or more Global Securities notifies the Trust that it is
unwilling or unable to continue as Depositary for such Trust Preferred
Securities or if at any time the Depositary for such Trust Preferred Securities
shall no longer be eligible to act as such under the Exchange Act, the Trust
shall appoint a successor Depositary with respect to such Trust Preferred
Securities. If a successor Depositary for such Trust 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 Trust
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, Trust Preferred Securities in definitive registered
form, in any authorized denominations, in an aggregate Liquidation Amount equal
to the principal amount of the Global Security representing such Trust Preferred
Securities in exchange for such Global Security.
The Trust may at any time and in its sole discretion determine that the
Trust Preferred Securities issued in the form of one or more Global Securities
shall no longer be represented by a Global Security. In such event the Trust
shall execute, and the Property Trustee, shall authenticate and deliver, Trust
Preferred Securities in definitive registered form, in any
47
authorized denominations, in an aggregate Liquidation Amount equal to the
principal amount of the Global Security representing such Trust Preferred
Securities, in exchange for such Global Security.
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 Trust Preferred Securities
not represented by a Global Security and Trust Preferred Securities not
represented by a Global Security may be transferred or exchange for Global
Securities in accordance with rules of the Depositary and the provisions of
Section 7.9.
Section 7.13 [INTENTIONALLY OMITTED]
-----------------------
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) a 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;
48
(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;
(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
tax counsel that the distribution of the Debentures would not
result in the recognition of gain or loss for United States
federal income tax purposes by the Holders of the Trust Preferred
Securities; 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 $25 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, the Debentures 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
Trust Preferred Securities except that if an Indenture Event of Default has
occurred and is continuing, the Trust Preferred Securities shall have a
preference over the Common Securities with regard to such distributions.
49
ARTICLE 9
LIMITATION OF LIABILITY
OF HOLDERS OF SECURITIES, DELAWARE TRUSTEES OR OTHERS
Section 9.1 Liability.
---------
(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 Trust 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 an Indemnified Person shall be liable for
any such loss, damage or claim incurred by reason of such Indemnified
Person's gross 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.
50
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 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.
51
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 Debenture 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 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 Debenture 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 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 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 Debenture
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 Debenture 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 Debenture 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.
52
(iv) Expenses (including attorneys' fees) incurred by a Debenture
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 Debenture 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, that, based upon the facts known to the Administrative Trustees,
counsel or the Common Security Holder at the time such determination is
made, such Debenture 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 Debenture 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 Trust
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 Trust 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 Debenture 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 Debenture 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
53
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 Debenture 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) 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.
54
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 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
55
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 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;
56
(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:
(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 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 Trust Preferred 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 a Majority
in Liquidation Amount of the Trust Preferred Securities affected
thereby; provided that, if any amendment or proposal referred to in
clause (a) above would adversely affect only the Trust 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;
57
(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
(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 Trust Agreement 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 Trust 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 Trust Preferred Securities are listed or
58
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 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 Trust 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
59
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, 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
60
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. 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.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(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 USA, National Association
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Institutional Trust Services
(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):
Dominion Resources, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(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
61
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.
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.]
62
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 USA, NATIONAL
ASSOCIATION, as Delaware Trustee
By:______________________________________
Name:
Title:
_________________________________________
Name: G. ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Administrative Trustee
_________________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Administrative Trustee
63
EXHIBIT A
[IF THE TRUST PREFERRED SECURITY IS TO BE A GLOBAL TRUST PREFERRED
SECURITY, INSERT THE FOLLOWING: THIS TRUST PREFERRED SECURITY IS A GLOBAL TRUST
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 TRUST
PREFERRED SECURITY IS EXCHANGEABLE FOR TRUST 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
TRUST 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 TRUST 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
TRUST 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 TRUST PREFERRED
SECURITIES: AS SET FORTH ON
SCHEDULE A HERETO
CUSIP NO._________________
CERTIFICATE EVIDENCING 8.4% TRUST PREFERRED SECURITIES
OF
DOMINION RESOURCES CAPITAL TRUST II
8.4% TRUST PREFERRED SECURITIES
(LIQUIDATION AMOUNT $25 PER TRUST PREFERRED SECURITY)
FULLY AND UNCONDITIONALLY
GUARANTEED BY DOMINION RESOURCES, INC.
DOMINION RESOURCES CAPITAL TRUST II, 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 the number of Trust
Preferred Securities of the Trust set forth on Schedule A hereto representing
undivided beneficial ownership interests in the assets of the Trust designated
the "8.4% Trust Preferred Securities" (Liquidation Amount $25 per Trust
A-1
Preferred Security) (the "Trust Preferred Securities"). The Trust 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 Trust Agreement (as defined below).
The designation, rights, privileges, restrictions, preferences and other terms
and provisions of the Trust Preferred Securities represented hereby are issued
and shall in all respects be subject to the provisions of the Amended and
Restated Trust Agreement of Dominion Resources Capital Trust II, dated as of
January 1, 2001, as the same may be amended from time to time (the "Trust
Agreement"), by and among DOMINION RESOURCES, INC., as Sponsor, G. ▇▇▇▇▇ ▇▇▇▇▇▇
and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as Administrative Trustees, The Chase Manhattan Bank, as
Property Trustee, Chase Manhattan Bank USA, National Association, 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 Trust 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 II
By_____________________________________
Name:
Title: Administrative Trustee
CERTIFICATE OF AUTHENTICATION
This is one of the Trust Preferred Securities referred to in the within-
mentioned Trust Agreement.
THE CHASE MANHATTAN BANK,
as Property Trustee
By_____________________________________
Authorized Officer
A-2
SCHEDULE A
SCHEDULE OF ADJUSTMENTS
The initial number of Trust Preferred Securities evidenced by the
Certificate to which this Schedule is attached is ___________________. The
notations on the following table evidence increases in the number of Trust
Preferred Securities evidenced by such Certificate.
-------------------------------------------------------------------------------------
Total Number of Trust
Increase in Number of Preferred Securities
Trust Preferred Outstanding After Notation by
Closing Date Securities Increase Property Trustee
-------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------
A-3
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: AS
SET FORTH ON SCHEDULE A HERETO
CERTIFICATE EVIDENCING 8.4% COMMON SECURITIES
OF
DOMINION RESOURCES CAPITAL TRUST II
8.4% COMMON SECURITIES
(LIQUIDATION AMOUNT $25 PER COMMON SECURITY)
DOMINION RESOURCES CAPITAL TRUST II, 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 the number of
common securities of the Trust set forth on Schedule A hereto representing an
undivided beneficial ownership interest in the assets of the Trust designated
the "8.4% Common Securities" (Liquidation Amount $25 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 Dominion Resources Capital Trust II, dated as of January 1, 2001
(as the same may be amended from time to time, the "Trust Agreement"), by and
among DOMINION RESOURCES, INC., as Sponsor, G. ▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
as Administrative Trustees, The Chase Manhattan Bank, as Property Trustee, Chase
Manhattan Bank USA, National Association, 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.
B-1
IN WITNESS WHEREOF, the Trust has executed this certificate this ____ day
of ___________, _______.
DOMINION RESOURCES CAPITAL TRUST II
By:____________________________________
Name:
Title: Administrative Trustee
B-2
SCHEDULE A
SCHEDULE OF ADJUSTMENTS
The initial number of Common Securities evidenced by the Certificate to
which this Schedule is attached is ___________________. The notations on the
following table evidence increases in the number of Common Securities evidenced
by such Certificate.
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Total Number of Trust
Increase in Number of Preferred Securities
Trust Preferred Outstanding After Notation by
Closing Date Securities Increase Property Trustee
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B-3
