Exhibit 4.5
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DOMINION RESOURCES, INC.
and
XXXXXXX XXXXX XXXXXX INC.
_____________________
Dated as of March 20, 2002
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TABLE OF CONTENTS
Page
Section 1. Definitions. ........................................................ 1
Section 2. Appointment and Obligations of the Remarketing Agent. ............... 3
Section 3. Representations, Warranties and Agreements of the Company. .......... 7
Section 4. Officers' Certificates. ............................................. 9
Section 5. Fees and Expenses. .................................................. 10
Section 6. Further Agreements of the Company. .................................. 10
Section 7. Conditions to the Remarketing Agent's Obligations. .................. 12
Section 8. Indemnification. .................................................... 18
Section 9. Contribution. ....................................................... 20
Section 10. Resignation and Removal of the Remarketing Agent. ................... 21
Section 11. Dealing in the Remarketing Senior Notes. ............................ 21
Section 12. Remarketing Agent's Performance; Duty of Care. ...................... 21
Section 13. Termination. ........................................................ 22
Section 14. Notices. ............................................................ 22
Section 15. Persons Entitled to Benefit of Agreement. ........................... 22
Section 16. Survival. ........................................................... 23
Section 17. Governing Law. ...................................................... 23
Section 18. Counterparts. ....................................................... 23
Section 19. Headings. ........................................................... 23
DOMINION RESOURCES, INC.
2002 Series A 5.75% Senior Notes, due May 15, 2008
March 20, 2002
Xxxxxxx Xxxxx Barney Inc.
000 Xxxxxxxxx Xxxxxx, 00/xx/ Xxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
Xxxxxxx Xxxxx Xxxxxx, Inc. is undertaking to remarket the 2002 Series
A 5.75% Senior Notes, due May 15, 2008 (the "Senior Notes"), issued by Dominion
Resources, Inc., a Virginia corporation (the "Company"), pursuant to the
Indenture, dated as of June 1, 2000, between the Company and JPMorgan Chase Bank
(formerly known as The Chase Manhattan Bank), as Trustee (the "Indenture
Trustee"), as amended and supplemented by the Tenth Supplemental Indenture,
dated March 1, 2002 (as amended and supplemented, the "Supplemental Indenture").
The Remarketing of the Senior Notes is provided for in the
Supplemental Indenture, the Purchase Agreement and the Pledge Agreement.
Section 1. Definitions.
(a) Capitalized terms used and not defined in this Agreement shall have
the meanings set forth in the Purchase Contract Agreement, dated as of March 20,
2002 (the "Purchase Contract Agreement"), between the Company and JPMorgan Chase
Bank, as Purchase Contract Agent (the "Purchase Contract Agent), in the
Indenture or in the Supplemental Indenture.
(b) As used in this Agreement, in addition to the terms defined in the
opening paragraph and in Section 1(a), the following terms have the following
meanings:
"Agreement" means this , as amended or
supplemented from time to time;
"Principal Amount" means the principal amount of a Senior Note, or $50;
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"Remarketing Senior Notes" means collectively (1) the Pledged Senior
Notes and (2) the Separated Senior Notes of holders that have elected to
participate in the Remarketing pursuant to Section 106 of the Supplemental
Indenture and Section 5.7 of the Pledge Agreement, in each case as
identified to the Remarketing Agent by the Purchase Contract Agent (with
respect to the Pledged Senior Notes to be remarketed) and the Collateral
Agent (with respect to the Separated Senior Notes to be remarketed) by
11:00 a.m. (New York City time) on the Business Day preceding the Initial
Remarketing Date or, if applicable, any Subsequent Remarketing Dates or the
Final Remarketing Date.
"Remarketing Procedures" means the procedures in connection with the
Remarketing of the Senior Notes described in the Supplemental Indenture,
the Purchase Contract Agreement, the Pledge Agreement and this Agreement;
and
"Subsidiary" and "Significant Subsidiary" have the meanings set forth
in Rule 405 under the Securities Act.
The terms set forth below have the meanings given them in the
referenced sections of this Agreement:
Term Section
---- -------
Depositary Participant 2(e)
Effective Date 3(b)
Effective Time 3(b)
Failed Remarketing 2(f)
Final Remarketing 2(d)
Final Remarketing Date 2(d)
Initial Remarketing 2(c)
Initial Remarketing Date 2(c)
Material Adverse Effect 3(f)
Preliminary Prospectus 3(b)
Prospectus 3(b)
Remarketing Agent 2(a)
Remarketing Date 2(e)
Remarketing Materials 3(b)
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Remarketing Settlement Date 2(e)
Rules and Regulations 3(b)
Securities Act 3(b)
Subsequent Remarketing 2(d)
Subsequent Remarketing Date 2(d)
Successful Initial Remarketing 2(e)
Successful Final Remarketing 2(e)
Successful Remarketing 2(e)
Successful Subsequent Remarketing 2(e)
Transactions 3(h)
Section 2. Appointment and Obligations of the Remarketing Agent.
(a) The Company hereby appoints Xxxxxxx Xxxxx Xxxxxx Inc. as exclusive
remarketing agent (the "Remarketing Agent"), and Xxxxxxx Xxxxx Barney Inc.
hereby accepts appointment as Remarketing Agent, for the purpose of (1)
Remarketing the Remarketing Senior Notes on behalf of the holders thereof and
(2) performing such other duties as are assigned to the Remarketing Agent in the
Remarketing Procedures, all in accordance with the Remarketing Procedures.
(b) The Remarketing Agent agrees to (1) use commercially reasonable
efforts to remarket the Remarketing Senior Notes tendered or deemed tendered to
the Remarketing Agent in the Remarketing, (2) provide prompt notice of the Reset
Rate as set forth in this Agreement and (3) carry out such other duties as are
assigned to the Remarketing Agent in the Remarketing Procedures, all in
accordance with the provisions of the Remarketing Procedures.
(c) On February 15, 2006 (the "Initial Remarketing Date"), the
Remarketing Agent shall use its commercially reasonable efforts to remarket (the
"Initial Remarketing") the Remarketing Senior Notes at a price at least equal to
the Remarketing Value pursuant to the Remarketing Procedures. If, as a result of
such efforts, the Remarketing Agent determines that it will be able to remarket
all of the Remarketing Senior Notes tendered or deemed tendered for purchase at
a price at least equal to the Remarketing Value prior to 4:00 p.m. (New York
City time) on the Initial Remarketing Date, the Remarketing Agent shall
determine the Reset Rate that will enable it to remarket all Remarketing Senior
Notes tendered or deemed tendered for Remarketing at an interest rate on the
Initial Remarketing Date sufficient to allow the Remarketing to occur at a price
equal to the Remarketing Value.
(d) If, despite the commercially reasonable efforts described in the
preceding paragraph, the Remarketing Agent cannot remarket the Remarketing
Senior Notes on the Initial
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Remarketing Date, the Remarketing Agent will continue to use its commercially
reasonable efforts to remarket the Remarketing Senior Notes (i) on one or more
subsequent occasions from the Initial Remarketing Date to, and including, the
ninth Business Day preceding the Purchase Contract Settlement Date and (ii) if
necessary, on the third Business Day preceding the Purchase Contract Settlement
Date, and in connection therewith to determine the Reset Rate at an interest
rate on the Remarketing Date, if any, sufficient to allow the Remarketing at a
price equal to the Remarketing Value as set forth herein and (each such
subsequent Remarketing up to and including the ninth Business Day preceding the
Purchase Contract Settlement Date being referred to as a "Subsequent
Remarketing" and each such date to be referred to as, a "Subsequent Remarketing
Date"; and the Remarketing on the third Business Day preceding the Purchase
Contract Settlement Date, being referred to as the "Final Remarketing" and such
date to be referred to as, the "Final Remarketing Date;"), in each case in
accordance with the Remarketing Procedures; provided, however, that, the Final
Remarketing, if at all, must occur no later than on the third Business Day
immediately preceding the Purchase Contract Settlement Date.
(e) If the Initial Remarketing, any Subsequent Remarketing or the Final
Remarketing is successful (respectively, a "Successful Initial Remarketing," a
"Successful Subsequent Remarketing" or a "Successful Final Remarketing"; any of
the foregoing, a "Successful Remarketing"; and the date of a Successful
Remarketing, the "Remarketing Date"), then:
(i) By approximately 4:30 p.m. (New York City time) on such Remarketing
Date, (A) the Remarketing Agent shall advise by telephone the Company, the
Purchase Contract Agent, the Collateral Agent, the Securities Intermediary,
the Depositary and the Trustee, of the Reset Rate determined in the
Remarketing, (B) the Remarketing Agent shall advise each purchaser of
Senior Notes sold in the Remarketing or such purchaser's DTC participant
(the "Depositary Participant") of the Reset Rate and the number of Senior
Notes such purchaser is to purchase, and (C) the Remarketing Agent shall
request each purchaser to give instructions to its Depositary Participant
to pay the purchase price on the third Business Day after the Remarketing
Date (the "Remarketing Settlement Date") in same day funds against delivery
of the Remarketing Senior Notes purchased through the facilities of the
Depositary.
In accordance with the Depositary's normal procedures, on the Remarketing
Settlement Date or the Purchase Contract Settlement Date, as applicable,
the transactions described above with respect to Senior Notes remarketed in
the Remarketing shall be executed through the Depositary, and the accounts
of the respective Depositary Participants shall be debited and credited,
respectively, and such Remarketing Senior Notes delivered by book-entry, as
necessary to effect purchases and sales of such Remarketing Senior Notes;
provided, however, that, the settlement procedures set forth herein,
including provisions for payment by purchasers of the Remarketing Senior
Notes in the Remarketing, shall be subject to modification to the extent
required by the Depositary or if the book-entry system is no longer
available for the Remarketing Senior Notes at the time of the Remarketing,
to facilitate the remarketing of the Remarketing Senior Notes in
certificated form and the Remarketing Agent may modify such settlement
procedures in order to facilitate the settlement process.
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(ii) Upon receipt of the proceeds from a Successful Remarketing, the
Remarketing Agent shall:
(A) deduct and retain for itself an amount equal to 0.25% of the Principal
Amount of the Remarketing Senior Notes as a fee for the performance of its
services as Remarketing Agent hereunder;
(B) (I) if the Successful Remarketing occurs prior to the third Business
Day preceding the Purchase Contract Settlement Date, use the remaining
proceeds with respect to the Pledged Senior Notes from such Successful
Remarketing to purchase the Treasury Portfolio, in open market transactions
and/or at Treasury auctions, described in clauses (1)(i) and (2)(i) of the
definition of Remarketing Value and deliver such Treasury Portfolio to the
Collateral Agent on the Remarketing Settlement Date or as soon thereafter
as is practicable, or (II) if such Successful Remarketing occurs on the
Final Remarketing Date, remit to the Collateral Agent on the Remarketing
Settlement Date the portion of the remaining proceeds with respect to the
Pledged Senior Notes from such Successful Remarketing in an amount equal to
the aggregate principal amount of such Senior Notes.
(C) if any Separated Senior Notes were included in such Successful
Remarketing, remit to the Collateral Agent for payment to the holders of
such Separated Senior Notes the amounts specified in clauses 1(ii) and
2(ii) of the definition of Remarketing Value; and
(D) remit any remaining balance of such proceeds after the application of
such proceeds as set forth in clauses (A) through (C) above, if any, to the
Purchase Contract Agent for the benefit of the Holders of the remarketed
Pledged Senior Notes and to the Collateral Agent for the holders of any
remarketed Separated Senior Notes, on a pro rata basis; provided, however,
that if such Successful Remarketing is consummated after 4:30 p.m. (New
York City time) on such Remarketing Date and, despite using its
commercially reasonable efforts, the Remarketing Agent cannot cause the
applications of the proceeds specified above to occur on the Remarketing
Settlement Date, then the Remarketing Agent may make such applications and
remittances on the next succeeding Business Day. The Remarketing Agent may,
in its discretion, communicate with holders of the Senior Notes, and
prospective purchasers of Remarketing Senior Notes in connection with its
remarketing efforts in order to facilitate the remarketing and the intent
and purpose of this Agreement despite the fact that such communication may
not be expressly required herein.
(f) If, by 4:00 p.m. (New York City time), on the ninth Business Day
preceding the Purchase Contract Settlement Date, the Remarketing Agent, despite
using its commercially reasonable efforts, has been and is unable to remarket
all of the Remarketing Senior Notes tendered for purchase at a price equal to at
least the Remarketing Value, the Remarketing Agent shall Transfer to the
Collateral Agent, by the sixth Business Day preceding the Purchase Contract
Settlement Date, the Pledged Senior Notes that that were to be remarketed in the
Initial or Subsequent Remarketing, whereupon the Collateral Agent shall, for the
benefit of the
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Company, hold such Pledged Senior Notes, to secure the obligation of the related
Holders of Corporate Units to purchase Common Stock under the related Purchase
Contracts.
(g) If, (1) by 4:00 p.m. (New York City time), on the Final Remarketing
Date, the Remarketing Agent, despite using its commercially reasonable efforts,
has been and is unable to remarket all of the Remarketing Senior Notes tendered
for purchase at a price equal to at least the Remarketing Value, or (2) the
Remarketing Agent has determined that the Remarketing may not be commenced or
consummated as contemplated herein and by the Remarketing Procedures under
applicable law, a failed Remarketing (a "Failed Remarketing") shall be deemed to
have occurred. If a Failed Remarketing occurs, the Remarketing Agent and the
Company, as applicable, shall take the following actions:
(i) The Remarketing Agent shall notify by telephone the Company, the
Purchase Contract Agent, the Collateral Agent and the Trustee, that a
Failed Remarketing has occurred, whereupon the Company shall notify the
Depositary, by telephone, that a Failed Remarketing has occurred.
(ii) The Company shall cause a notice of the Failed Remarketing to be sent
to the holders of all Senior Notes and to be published in an Authorized
Newspaper in New York City, in each case, no later than the Business Day
preceding Purchase Contract Settlement Date.
(iii) The Remarketing Agent shall determine the Reset Rate that will be
equal to the Two Year Benchmark Rate plus the Applicable Spread in
accordance with Section 106 of the Supplemental Indenture.
(iv) The Remarketing Agent shall remit the Pledged Senior Notes that were
to be remarketed to the Purchase Contract Agent and the Separated Senior
Notes that were to be remarketed to the Collateral Agent.
(g) If there are no Pledged Senior Notes and no holders of Separated
Senior Notes elect to participate in the Remarketing and deliver their Separated
Senior Notes and a notice of such election to the Collateral Agent by the
Election Date in accordance with the Supplemental Indenture, then:
(i) the Remarketing Agent shall, in its sole discretion, determine the
rate that, in its judgment, would have been established had a Remarketing
been held on the Final Remarketing Date, and such rate shall be the Reset
Rate;
(ii) the Remarketing Agent shall advise by telephone the Company and the
Trustee of such Reset Rate, whereupon the Company shall notify the
Depositary in writing of such Reset Rate; and
(iii) the Company shall cause a notice of such Reset Rate to be sent to the
holders of all Senior Notes and to be published in an Authorized Newspaper
in New York City, in each case, no later than the Business Day preceding
the Purchase Contract Settlement Date.
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Section 3. Representations, Warranties and Agreements of the Company.
The Company represents, warrants and agrees (i) on and as of the date
hereof, (ii) on and as of the date the Prospectus Supplement or other
Remarketing Materials (each as defined in Section 3(b) below) are first
distributed in connection with the Remarketing (the "Commencement Date"), and
(iii) on and as the Initial Remarketing Date and, if applicable, any Subsequent
Remarketing Date and the Final Remarketing Date that:
(a) The conditions for use of Form S-3, as set forth in the General
Instructions thereto, have been satisfied.
(b) A registration statement on Form S-3 (File No. 333-55904) and an
amendment or amendments thereto with respect to the initial offering of the
Senior Notes has (i) been prepared by the Company in conformity with the
requirements of the Securities Act of 1933, as amended (the "Securities
Act"), and the rules and regulations (the "Rules and Regulations") of the
Commission thereunder, (ii) been filed with the Commission under the
Securities Act and (iii) become effective under the Securities Act; a
registration statement on Form S-3, if required to be filed in connection
with the Remarketing, also may be prepared by the Company in conformity
with the requirements of the Securities Act and the Rules and Regulations
and filed with the Commission under the Securities Act; and the Indenture
has been qualified under the Trust Indenture Act. Copies of such
registration statement or registration statements that have become
effective, and the amendment or amendments to such registration statements,
have been delivered by the Company to the Remarketing Agent, in the case of
documents not electronically available through the Commission's XXXXX
filing system and, in the case of documents that are so available, to the
extent requested by the Remarketing Agent.
As used in this Agreement, "Effective Time" means the date and time as
of which the last of such registration statements that have become
effective or may be filed, or the most recent post-effective amendment
thereto, if any, was declared effective by the Commission; "Effective Date"
means the date of the Effective Time of such last registration statement;
"Preliminary Prospectus" means each prospectus relating to the Remarketing
Senior Notes included in such last registration statement, or amendment
thereto, before it became effective under the Securities Act and any
prospectus relating to the Remarketing Senior Notes filed by the Company
pursuant to Rule 424(a) of the Rules and Regulations; "Registration
Statement" means such last registration statement, as amended at its
Effective Time, including documents incorporated by reference therein at
such time and, if applicable, all information contained in the final
prospectus filed with the Commission pursuant to Rule 424(b) of the Rules
and Regulations, including any information deemed to be part of such
Registration Statement as of the Effective Time pursuant to paragraph (b)
of Rule 430A of the Rules and Regulations; and "Prospectus" means each
final prospectus relating to the Remarketing Senior Notes, as first filed
pursuant to Rule 424(b) of the Rules and Regulations.
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Reference made herein to any Preliminary Prospectus, the Prospectus or
any other information furnished by the Company to the Remarketing Agent for
distribution to investors in connection with the Remarketing (the
"Remarketing Materials") shall be deemed to refer to and include any
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the Securities Act as of the date of such Preliminary Prospectus or
the Prospectus, as the case may be, or, in the case of Remarketing
Materials, referred to as incorporated by reference therein, and any
reference to any amendment or supplement to any Preliminary Prospectus, the
Prospectus or the Remarketing Materials shall be deemed to refer to and
include any document filed under the Exchange Act after the date of such
Preliminary Prospectus or the Prospectus incorporated by reference therein
pursuant to Item 12 of Form S-3 or, if so incorporated, the Remarketing
Materials, as the case may be; and any reference to any amendment to the
Registration Statement shall be deemed to include any annual report of the
Company filed with the Commission pursuant to Section 13(a) or 15(d) of the
Exchange Act after the Effective Time that is incorporated by reference in
the Registration Statement.
(c) The Commission has not issued an order preventing or suspending
the use of the Registration Statement, any Preliminary Prospectus, the
Prospectus or the Remarketing Materials.
(d) The Registration Statement conforms (and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus, when they become effective or are filed with the Commission, as
the case may be, will conform) in all respects to the requirements of the
Securities Act and the Rules and Regulations, and the Registration
Statement, the Prospectus and the Remarketing Materials do not and will
not, as of the Effective Date (as to the Registration Statement and any
amendment thereto), as of the applicable filing date (as to the Prospectus
and any amendment or supplement thereto) and as of the Commencement Date
and the Remarketing Date (as to the Registration Statement, the Prospectus
and any Remarketing Materials) contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided that no
representation and warranty is made as to the statement of eligibility and
qualification on Form T-1 of the Indenture Trustee under the Trust
Indenture Act, or as to information contained in or omitted from the
Registration Statement, the Prospectus or the Remarketing Materials in
reliance upon and in conformity with written information furnished to the
Company by the Remarketing Agent specifically for inclusion therein; the
Indenture conforms in all material respects to the requirements of the
Trust Indenture Act and the applicable rules and regulations thereunder.
(e) Deloitte & Touche LLP, who certified certain of the Company's
financial statements incorporated by reference in the Registration
Statement and the Prospectus (or any firm that subsequently serves as the
Company's independent public accountants), are independent public
accountants as required by the Securities Act and the Rules and
Regulations.
(f) Except as reflected in, or contemplated by, the Registration
Statement, the Prospectus or the Remarketing Materials, since the
respective most recent dates as of
9
which information is given in the Registration Statement, the Prospectus or
any Remarketing Materials, there has not been any material adverse change
or event which would result in a material adverse effect on the condition
of the Company and its subsidiaries taken as a whole, financial or
otherwise (a "Material Adverse Effect"). The Company and its subsidiaries,
taken as a whole, have no material contingent financial obligation which is
not disclosed in the Registration Statement, the Prospectus or the
Remarketing Materials.
(g) All of the issued and outstanding capital stock or membership
interests of each Significant Subsidiary of the Company have been duly
authorized and are validly issued, fully paid and nonassessable and, with
the exception of the outstanding preferred stock of Virginia Electric and
Power Company which is owned by third parties (or any stock owned by third
parties of any Significant Subsidiary that the Company acquires after the
date hereof), is owned by the Company, directly or through subsidiaries,
free and clear of any security interest, mortgage, pledge, lien, claim,
encumbrance or equitable right.
(h) The execution, delivery and performance of this Agreement, the
Indenture and the Senior Notes and any other agreement or instrument
entered into or issued or to be entered into or issued by the Company in
connection with the transactions contemplated hereby or thereby and the
consummation of the transactions contemplated herein or therein
(collectively, the "Transactions") and compliance by the Company with its
obligations hereunder and thereunder do not and will not, whether with or
without the giving of notice or lapse of time or both, conflict with or
constitute a breach of, or default under or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets
of the Company or any subsidiary pursuant to any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or any other
agreement or instrument, to which the Company or any subsidiary is a party
or by which it or any of them may be bound, or to which any of the property
or assets of the Company or any subsidiary is subject (except for such
conflicts, breaches or defaults or liens, charges or encumbrances that
would not have a Material Adverse Effect), nor will such action result in
any violation of the provisions of the charter or bylaws of the Company or
any subsidiary, or any applicable law, statute, rule, regulation, judgment,
order, writ or decree of any government, government instrumentality or
court, domestic or foreign, having jurisdiction over the Company or any
subsidiary or any of their respective properties, assets or operations, and
the Company has full power and authority to perform under this Agreement.
(i) The Company is not an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined in the
Investment Company Act of 1940, as amended.
Section 4. Officers' Certificates.
Any certificate signed by any officer of the Company or any of its
subsidiaries and delivered to the Remarketing Agent or to counsel for the
Remarketing Agent in connection with the Remarketing shall be deemed a
representation and warranty by the Company to the Remarketing Agent as to
the matters covered thereby on the date of such certificate.
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Section 5. Fees and Expenses.
(a) For the performance of its services as Remarketing Agent
hereunder, the Remarketing Agent shall retain from the proceeds of the
Remarketing a Remarketing Fee in accordance with Section 2(e)(ii)(A).
(b) The Company agrees to pay:
(1) the costs incident to the preparation and printing of the
Registration Statement, Prospectus and any Remarketing Materials and any
amendments or supplements thereto, including all related registration and
filing fees;
(2) the costs of distributing the Registration Statement,
Prospectus and any Remarketing Materials and any amendments or supplements
thereto;
(3) The fees and expenses of qualifying the Remarketing Senior
Notes under the securities laws of the several jurisdictions as provided in
Section 6(f) and of preparing, printing and distributing a Blue Sky
Memorandum (including related fees and expenses of counsel to the
Remarketing Agent);
(4) all other costs and expenses incident to the performance of the
obligations of the Company hereunder, including the fees and expenses of
the Company's counsel; and
(5) the reasonable fees and expenses of outside counsel to the
Remarketing Agent in connection with their duties hereunder.
Section 6. Further Agreements of the Company.
The Company covenants and agrees as follows:
(a) (1) To prepare any registration statement or prospectus, if
required, in connection with the Remarketing, in a form approved by the
Remarketing Agent and to file any such prospectus pursuant to the
Securities Act within the period required by the Rules and Regulations;
(2) to advise the Remarketing Agent, promptly after it receives
notice thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed, in each such case
excluding documents filed under the Exchange Act incorporated by reference,
and to furnish the Remarketing Agent with copies of such notice;
(3) to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act subsequent to the date of the Prospectus and for so long as the
delivery of a prospectus is required in connection with the offering or
sale of the Remarketing Senior Notes;
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(4) to advise the Remarketing Agent, promptly after it
receives notice thereof, of the issuance by the Commission of any stop
order or of any order preventing or suspending the use of the
Prospectus, of the suspension of the qualification of any of the
Remarketing Senior Notes for offering or sale in any jurisdiction, of
the initiation or threatening of any proceeding for any such purpose,
or of any request by the Commission for the amending or supplementing
of the Registration Statement or the Prospectus or for additional
information; and, in the event of the issuance of any stop order or of
any order preventing or suspending the use of any Prospectus or
suspending any such qualification, to use promptly its best efforts to
obtain its withdrawal.
(b) To deliver promptly to the Remarketing Agent in New York City
such number of the following documents as the Remarketing Agent shall
request: (i) conformed copies of the Registration Statement as
originally filed with the Commission and each amendment thereto (in
each case excluding exhibits other than this Agreement and the
Indenture), (ii) the Prospectus and any amended or supplemented
Prospectus, (iii) any document incorporated by reference in the
Prospectus (excluding exhibits thereto) and (iv) any Remarketing
Materials; and, if the delivery of a prospectus is required at any
time in connection with the Remarketing and if at such time any event
shall have occurred as a result of which the Prospectus as then
amended or supplemented would include any untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not
misleading, or if for any other reason in the opinion of counsel to
the Company or the Remarketing Agent it shall be necessary during such
same period to amend or supplement the Registration Statement or
Prospectus or to file under the Exchange Act any document incorporated
by reference in the Prospectus in order to comply with the Securities
Act or the Exchange Act, to notify the Remarketing Agent and to file
such document and to prepare and furnish without charge to the
Remarketing Agent and to any dealer in Senior Notes as many copies as
the Remarketing Agent may from time to time request of an amended or
supplemented Prospectus which will correct such statement or omission
or effect such compliance.
(c) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the
Prospectus that may, in the judgment of the Company or the Remarketing
Agent, be required by the Securities Act or requested by the
Commission.
(d) Prior to filing with the Commission (i) any amendment to the
Registration Statement or supplement to the Prospectus (excluding
documents filed under the Exchange Act incorporated by reference) or
(ii) any Prospectus pursuant to Rule 424 of the Rules and Regulations,
to furnish a copy thereof to the Remarketing Agent and counsel to the
Remarketing Agent; and to afford them a reasonable opportunity to
comment on any such amendment or supplement.
(e) As soon as practicable after the Effective Date of the
Registration Statement to make "generally available to the Company's
security holders" and to deliver to the Remarketing Agent an "earnings
statement" of the Company and its subsidiaries (which need not be
audited) in reasonable detail, covering a period of at least 12 months
12
beginning within three months after the Effective Date of the
Registration Statement, which earnings statement shall satisfy the
requirements of Section 11(a) of the Securities Act. The terms
"generally available to its security holders" and "earnings statement"
shall have the meanings set forth in Rule 158 of the Rules and
Regulations.
(f) Promptly from time to time to take such action as the
Remarketing Agent may reasonably request to qualify any of the
Remarketing Senior Notes for offer and sale under the securities or
"blue sky" laws of such jurisdictions as the Remarketing Agent may
request and to comply with such laws so as to permit the continuance
of sales and dealings therein in such jurisdictions for as long as may
be necessary to complete the distribution of the Senior Notes;
provided that in connection therewith, the Company shall not be
required to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction in which it is not
so qualified or to submit to any requirements which it deems unduly
burdensome.
Section 7. Conditions to the Remarketing Agent's Obligations.
The obligations of the Remarketing Agent hereunder are subject to
(i) the accuracy, on and as of the date when made, of the representations and
warranties of the Company contained herein or in any Certificates of any officer
of the Company or any subsidiary of the Company delivered pursuant hereto, (ii)
the performance by the Company of its obligations hereunder and (iii) each of
the following additional terms and conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Section 6(a) hereof; no stop order suspending the
effectiveness of the Registration Statement or any part thereof or
suspending the qualification of the Indenture, shall have been issued
and no proceeding for that purpose shall have been initiated or
threatened by the Commission; and any request of the Commission for
inclusion of additional information in the Registration Statement or
the Prospectus or otherwise shall have been complied with.
(b) The Remarketing Agent shall not have discovered and disclosed
to the Company on or prior to the Remarketing Date that the
Registration Statement, the Prospectus or the Remarketing Materials or
any amendment or supplement thereto contains any untrue statement of a
fact which, in the opinion of counsel to the Remarketing Agent, is
material or omits to state any fact which, in the opinion of such
counsel, is material and is required to be stated therein or is
necessary to make the statements therein not misleading and the
Company shall not have filed an amendment or supplement to the
Registration Statement or otherwise acted to correct the matter so
disclosed.
(c) Counsel to the Company shall have furnished to the
Remarketing Agent its written opinion, addressed to the Remarketing
Agent and dated the Initial Remarketing Date and, if applicable, any
Subsequent Remarketing Date and the Final Remarketing Date, in form
and substance satisfactory to the Remarketing Agent, to the effect
that:
13
(i) No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court or
governmental authority or agency, domestic or foreign (other than
those required under the Public Utility Holding Company Act of 1935,
as amended, the Securities Act and the Rules and Regulations, which
have been obtained, or as may be required under the securities or blue
sky laws of the various states) is necessary or required in connection
with the due authorization, execution, delivery or performance of the
Indenture, the Senior Notes and this Agreement by the Company or for
the Remarketing of the Senior Notes. An appropriate order of the
Commission with respect to the sale of the Corporate Units, of which
the Senior Notes are a part, under the Public Utility Holding Company
Act of 1935, as amended (if required), has been issued, and such order
remains in effect at this date.
(ii) The Indenture has been duly authorized, executed and
delivered by, has been duly qualified under the Trust Indenture Act
and constitutes a valid and binding obligation of, the Company,
enforceable against the Company in accordance with its terms, subject
to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
(iii) The Senior Notes have been duly authorized, executed,
issued and delivered by the Company and constitute valid and binding
obligations of the Company entitled to the benefits of the Indenture,
enforceable in accordance with their terms, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors'
rights generally, general equitable principles (whether considered in
a proceeding in equity or at law) and an implied covenant of good
faith and fair dealing.
(iv) The Remarketing Senior Notes and the , when the Remarketing Senior Notes are remarketed pursuant
to this Agreement, will conform to the descriptions thereof contained
in the Prospectus and in any Remarketing Materials, and the Indenture
is in substantially the form filed as an exhibit to the Registration
Statement.
(v) The Registration Statement was declared effective under
the Securities Act, and the Indenture was qualified under the Trust
Indenture Act, as of the date and time specified in such opinion, the
Prospectus was filed with the Commission pursuant to the subparagraph
of Rule 424(b) of the Rules and Regulations specified in such opinion
on the date specified therein and, to the knowledge of such counsel,
no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that purpose is
pending or threatened by the Commission.
14
(vi) The Registration Statement and the Prospectus appear on
their face to be appropriately responsive in all material respects to
the requirements of the Securities Act and the Rules and Regulations
(except that such counsel need express no comment or belief with
respect to the financial statements and schedules and other financial
or statistical information contained in the Registration Statement or
Prospectus).
(vii) The statements contained in the Prospectus under the
captions "Description of Debt Securities," "Additional Terms of Senior
Debt Securities," and "Description of the Senior Notes," insofar as
they purport to constitute summaries of certain terms of documents
referred to therein, constitute accurate summaries of the terms of
such documents in all material respects.
(viii) Based upon current law and the assumptions stated or
referred to therein, the statements relating to the Remarketing Senior
Notes set forth in the Prospectus or in the Remarketing Materials
under the caption "United States Federal Income Tax Consequences,"
insofar as they purport to constitute summaries of matters of United
States federal tax laws and regulations or legal conclusions with
respect thereto, constitute accurate summaries of the matters
described therein in all material respects.
In rendering such opinion, such counsel may state that its opinion is limited to
matters governed by the Federal laws of the United States of America and the
laws of the Commonwealth of Virginia and the State of New York. Such counsel
shall also advise the Remarketing Agent that although such counsel is not
passing upon and assumes no responsibility or liability for the accuracy,
completeness or fairness of the statements contained in the documents
incorporated by reference in the Prospectus or any further amendment or
supplement thereto made by the Company prior to such Remarketing Date, they have
no reason to believe that any of such documents (other than the financial
statements and related schedules therein, as to which such counsel need express
no opinion), when such documents became effective or were filed with the
Commission, as the case may be, contained, in the case of a registration
statement which became effective under the Securities Act, an untrue statement
of a material fact or omitted to state a material fact required to be stated
therein necessary to make the statements therein not misleading, or, in the case
of other documents which were filed under the Securities Act or the Exchange Act
with the Commission, an untrue statement of a material fact or omitted to state
a material fact necessary in order to make the statements therein, in light of
the circumstances under which they were made when such documents were so filed,
not misleading. Such counsel shall also advise the Remarketing Agent that
although such counsel is not passing upon and, except as set forth in clauses
(vii) and (viii) above, assumes no responsibility or liability for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement, the Prospectus and the Remarketing Materials and any further
amendments and supplements thereto made by the Company prior to such date, such
counsel has no reason to believe that, as of its effective date, the
Registration Statement or any further amendment thereto made by the Company
prior to such date (other than the financial statements and related schedules
therein, as to which such counsel need express no opinion) contained an untrue
statement of a material fact or
15
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that, as of its date, the
Prospectus and the Remarketing Materials or any further amendment or supplement
thereto made by the Company prior to such Remarketing Date (other than the
financial statements and related schedules therein, as to which such counsel
need express no opinion) contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading or that,
as of the Commencement Date, the Remarketing Date and the Purchase Contract
Settlement Date, either the Registration Statement, the Prospectus or the
Remarketing Materials or any further amendment or supplement thereto made by the
Company prior to such Remarketing Date (other than the financial statements and
related schedules therein, as to which such counsel need express no opinion)
contains an untrue statement of a material fact or omits to state a material
fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading. Such counsel may state that its
opinion is given on the basis that any statement contained in a document
incorporated by reference in the Prospectus or any further amendment or
supplement thereto shall be deemed not to be contained in the Registration
Statement or Prospectus if the statement has been modified or superseded by any
statement in a subsequently filed document incorporated by reference in the
Prospectus or any further amendment or supplement thereto or in the Registration
Statement or Prospectus.
(d) The General Counsel of the Company shall have furnished to the
Remarketing Agent a written opinion, addressed to the Remarketing Agent and
dated the Initial Remarketing Date and, if applicable, any Subsequent
Remarketing Date and the Final Remarketing Date, in form and substance
satisfactory to the Remarketing Agent, to the effect that:
(i) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the Commonwealth of
Virginia and has the corporate power and authority to own, lease and
operate its properties and to conduct its business as described in
Prospectus and in any Remarketing Materials and to enter into and perform
its obligations under this Agreement and the Indenture. The Company is duly
qualified as a foreign corporation to transact business and is in good
standing in each other jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify or be in good
standing would not result in a Material Adverse Effect.
(ii) Each Significant Subsidiary of the Company has been duly
organized and is validly existing in good standing under the laws of the
jurisdiction of its organization, has the power and authority to own, lease
and operate its properties and to conduct its business as described in the
Prospectus and in any Remarketing Materials and is duly qualified to
transact business and is in good standing in each jurisdiction in which
such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of
16
business, except where the failure to so qualify or be in good
standing would not result in a Material Adverse Effect.
(iii) This Agreement has been duly authorized, executed and
delivered by the Company.
(iv) There are no actions, suits or proceedings pending or, to
the best of such counsel's knowledge, threatened, to which the Company
or any of its subsidiaries is a party or to which any of the
properties of the Company or any of its subsidiaries is subject, other
than (A) as described in the Prospectus or in any Remarketing
Materials and (B) actions, suits or proceedings which such counsel
believes are not likely to have a material adverse effect on the power
or ability of the Company to perform its obligations under this
Agreement or to consummate the Transactions.
(e) On the Initial Remarketing Date and, if applicable, any
Subsequent Remarketing Date and the Final Remarketing Date, the Company
shall have furnished to the Remarketing Agent a letter addressed to the
Remarketing Agent and dated such date, in form and substance satisfactory
to the Remarketing Agent, of the Company's independent public accountants,
containing statements and information of the type ordinarily included in
accountants' "comfort letters" with respect to certain financial
information contained in the Prospectus and in the Remarketing Materials.
(f) The Company shall have furnished to the Remarketing Agent a
certificate, dated the Initial Remarketing Date and, if applicable, any
Subsequent Remarketing Date and the Final Remarketing Date, of its
President or any Vice President, stating that:
(i) the representations, warranties and agreements of the
Company contained in this Agreement are true and correct as of the
Remarketing Date, and the Company performed all obligations and
satisfied all conditions required of it under this Agreement; and
(ii) no stop order suspending the effectiveness of the
Registration Statement is in effect and no proceedings for such
purpose are pending before, or to such officer's knowledge, threatened
by the Commission on the date hereof.
(g) Subsequent to fifteen Business Days prior to the Remarketing Date
and prior to the Remarketing on the Remarketing Date, except as reflected
in, or contemplated by, the Registration Statement, the Prospectus and the
Remarketing Materials, there shall not have occurred:
(i) any change in the common stock or long-term debt of the
Company (other than a decrease in the aggregate principal amount of
such debt outstanding);
(ii) any material adverse change in the general affairs,
financial condition or earnings of the Company and its subsidiaries
taken as a whole; or
17
(iii) any material transaction entered into by the Company or a
Significant Subsidiary other than a transaction in the ordinary course
of business,
the effect of which, in any such case described in clause (i), (ii) or
(iii), is, in the reasonable judgment of the Remarketing Agent, so material
and so adverse as to make it impracticable to proceed with the Remarketing
on the terms and in the manner contemplated in the Prospectus, the
Remarketing Materials and this Agreement.
(h) Subsequent to fifteen Business Days prior to the Remarketing Date
and prior to the Remarketing on the Remarketing Date, there shall not have
occurred any of the following:
(i) a downgrading in the rating accorded the Company's senior
unsecured notes, or securities that are pari passu to the Company's
senior unsecured notes, by any "nationally recognized statistical
rating organization" (as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the Securities Act) or any public
announcement by any such organization that it has under surveillance
or review, with possible negative implications, its rating of such
securities;
(ii) any general suspension of trading in securities on the
New York Stock Exchange or any limitation on prices for such trading
or any restriction on the distribution of securities established by
the New York Stock Exchange or by the Commission or by any federal or
state agency or by the decision of any court;
(iii) a suspension of trading of any securities of the Company
on the New York Stock Exchange;
(iv) a banking moratorium shall have been declared by federal
or New York state authorities; or
(v) any outbreak or escalation of major hostilities in which
the United States is involved, any declaration of war by the United
States Congress or any other substantial national or international
calamity or crisis resulting in the declaration of a national
emergency, or any material adverse change in the financial markets,
the effect of which outbreak, escalation, declaration, calamity, crisis or
material adverse change, in the reasonable judgment of the Remarketing
Agent, makes it impracticable to proceed with the Remarketing on the terms
and in the manner contemplated in the Prospectus, the Remarketing Materials
and this Agreement.
(i) Without the prior written consent of the Remarketing Agent, the
Indenture shall not have been amended in any manner, or otherwise contain
any provision not contained therein as of the date hereof that, in the
reasonable judgment of the Remarketing Agent, materially changes the nature
of the Remarketing Senior Notes or the Remarketing Procedures. The
foregoing shall not require notice to, or the obtaining
18
of consent from, the Remarketing Agent with respect to any amendment or
change in the Indenture that does not materially change the nature of the
Remarketing Senior Notes or the Remarketing Procedures.
(j) All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, the Indenture, the
Remarketing Senior Notes, the Prospectus, the Registration Statement, the
Remarketing Materials and all other legal matters relating to this
Agreement and the transactions contemplated hereby shall be reasonably
satisfactory in all material respects to counsel to the Remarketing Agent,
and the Company shall have furnished to such counsel all documents and
information that they may reasonably request to enable them to pass upon
such matters.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Remarketing Agent.
Section 8. Indemnification.
(a) The Company agrees to indemnify and hold harmless the Remarketing
Agent and each person who controls the Remarketing Agent within the meaning of
Section 15 of the Securities Act or Section 20(a) of the Exchange Act, from and
against any and all losses, claims, damages or liabilities, joint or several, or
any actions in respect thereof, to which the Remarketing Agent or any such
controlling person may become subject, under the Securities Act, the Exchange
Act or any other statute or common law and to reimburse the Remarketing Agent
and any such controlling person for any legal or other expenses (including, to
the extent hereinafter provided, reasonable outside counsel fees) incurred by
the Remarketing Agent or any such controlling person in connection with
investigation or defending any such losses, claims, damages or liabilities or in
connection with defending any actions, insofar as such losses, claims, damages,
liabilities, expenses or actions arise out of, or are based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in (A) the
Registration Statement or the Prospectus or in any amendment or supplement
thereto (if any amendments or supplements thereto shall have been furnished) (B)
any Preliminary Prospectus (if and when used prior to the Effective Date) or (C)
any Remarketing Materials, or (ii) the omission or alleged omission to state
therein any material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that the foregoing
agreement, insofar as it relates to any Preliminary Prospectus, shall not inure
to the benefit of the Remarketing Agent (or to the benefit of any such
controlling person) on account of any losses, claims, damages, liabilities or
actions arising out of the sale of the Remarketing Senior Notes to any person by
the Remarketing Agent if it shall be established that a copy of the Prospectus,
excluding any documents incorporated by reference (as supplemented or amended,
if the Company shall have made any supplements or amendments which have been
furnished to the Remarketing Agent), shall not have been sent or given by or on
behalf of the Remarketing Agent to such person at or prior to the written
confirmation of the sale to such person in any case where such delivery is
required by the Securities Act and the Company satisfied its obligations
pursuant to Section 6(b), if the misstatement or omission leading to such loss,
claim, damage, liability or action was corrected in the Prospectus (excluding
any documents incorporated by reference) as amended or supplemented, and such
correction would have cured the defect giving rise to such loss, claim, damage,
liability or action;
19
and provided further that the indemnity agreement of the Company contained in
this Section 8(a) shall not apply to any such losses, claims, damages,
liabilities, expenses or actions arising out of, or based upon, any such untrue
statement or alleged untrue statement or omission or alleged omission if such
statement or omission was made in reliance upon information furnished herein or
otherwise in writing to the Company by or on behalf of the Remarketing Agent for
use therein. The indemnity agreement of the Company contained in this Section
8(a) and the representations and warranties of the Company contained in or made
pursuant to Sections 3 and 4 shall remain operative and in full force and
effect, regardless of any investigation made by or on behalf of the Remarketing
Agent or any such controlling person, and shall survive the Remarketing of the
Remarketing Senior Notes.
(b) The Remarketing Agent agrees to indemnify and hold harmless the
Company, its officers and directors and each person who controls the Company
within the meaning of Section 15 of the Securities Act or Section 20(a) of the
Exchange Act, from and against any and all losses, claims, damages or
liabilities, joint or several, or any actions in respect thereof, to which they
or any of them may become subject, under the Securities Act, the Exchange Act or
any other statute or common law and to reimburse each of them for any legal or
other expenses (including, to the extent hereinafter provided, reasonable
outside counsel fees) incurred by them in connection with investigation or
defending any such losses, claims, damages or liabilities or in connection with
defending any actions, insofar as such losses, claims, damages, liabilities,
expenses or actions arise out of, or are based upon, (i) any untrue statement or
alleged untrue statement of a material fact contained in (A) the Registration
Statement or the Prospectus or in any amendment or supplement thereto (if any
amendments or supplements thereto shall have been furnished) (B) any Preliminary
Prospectus (if and when used prior to the Effective Date) or (C) any Remarketing
Materials, or (ii) the omission or alleged omission to state therein any
material fact required to be stated therein or necessary to make the statements
therein not misleading, if such statement or omission was made in reliance upon
information furnished herein or in writing to the Company by or on behalf of the
Remarketing Agent for use therein. The indemnity agreement of the Remarketing
Agent contained in this Section 8(b) shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of the Company
or any such controlling person, and shall survive the Remarketing of the
Remarketing Senior Notes.
(c) Upon the receipt of notice of the commencement of any action
against the Company or any of its officers or directors or any person
controlling the Company or the Remarketing Agent or any person controlling the
Remarketing Agent as aforesaid, in respect of which indemnity may be sought on
account of any indemnity agreement contained herein, it will promptly give
written notice of the commencement thereof to the party or parties against whom
indemnity shall be sought hereunder, but the omission so to notify such
indemnifying party or parties of any such action shall not relieve such
indemnifying party or parties from any liability which it or they may have to
the indemnified party otherwise than on account of such indemnity agreement. In
case such notice of any such action shall be so given, such indemnifying party
shall be entitled to participate at its own expense in the defense or, if it so
elects, to assume (in conjunction with any other indemnifying parties) the
defense of such action, in which event such defense shall be conducted by
counsel chosen by such indemnifying party (or parties) and satisfactory to the
indemnified party or parties who shall be defendant or defendants in such
action, and such defendant or defendants shall bear the fees and expenses of any
additional
20
outside counsel retained by them; provided that, if the defendants (including
impleaded parties) in any such action include both the indemnified party and the
indemnifying party (or parties) and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party (or parties), the indemnified party shall have the right
to select separate counsel to assert such legal defenses and to participate
otherwise in the defense of such action on behalf of such indemnified party. The
indemnifying party shall bear the reasonable fees and expenses of outside
counsel retained by the indemnified party if (i) the indemnified party shall
have retained such counsel in connection with the assertion of legal defenses in
accordance with the proviso to the preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the expenses of
more than one separate counsel (in addition to one local counsel), representing
the indemnified parties under Section 8(a) or 8(b), as the case may be, who are
parties to such action), (ii) the indemnifying party shall have elected not to
assume the defense of such action, (iii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the commencement of
the action, or (iv) the indemnifying party has authorized the employment of
counsel for the indemnified party at the expense of the indemnifying party.
Notwithstanding the foregoing sentence, an indemnifying party shall not be
liable for any settlement of any proceeding effected without its written consent
(such consent not to be unreasonably withheld), but if settled with such consent
or if there be a final judgment for the plaintiff, the indemnifying party agrees
to indemnify the indemnified party from and against any loss or liability by
reason of such settlement or judgment. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which indemnification may be
sought hereunder (whether or not the indemnified party is an actual or potential
party to such a proceeding), unless such settlement (i) includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding and (ii) does not include a
statement as to or an admission of fault, culpability or failure to act by or on
behalf of any indemnified party.
Section 9. Contribution.
If the indemnification provided for in Section 8 hereof is unavailable to
or insufficient to hold harmless an indemnified party in respect of any losses,
claims, damages or liabilities, or actions in respect thereof, referred to
therein, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages or
liabilities, or actions in respect thereof, in such proportion as is appropriate
to reflect the relative fault of the Company on the one hand and the Remarketing
Agent on the other in connection with the statements or omissions which resulted
in such losses, claims, damages or liabilities, or actions in respect thereof,
as well as any other relevant equitable considerations, including relative
benefit. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact required to be stated
therein or necessary in order to make the statements therein not misleading
relates to information supplied by the Company on the one hand or the
Remarketing Agent on the other hand and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company and the Remarketing Agent agree that it would not be just
and equitable if contribution pursuant to this Section 9 were to be determined
by pro rata allocation or by any other method of allocation
21
which does not take into account the equitable considerations referred to above
in this Section 9. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities, or actions in respect
thereof, referred to above in this Section 9 shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such claim or action. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The remedies provided for in
this Section 9 are not exclusive and shall not limit any rights or remedies
which may otherwise be available to any indemnified party at law or in equity.
Section 10. Resignation and Removal of the Remarketing Agent.
The Remarketing Agent may resign and be discharged from its duties
and obligations hereunder by giving 60 days' prior written notice to the
Company, the Depositary, the Indenture Trustee and the Purchase Contract Agent.
The Company may, in its discretion, remove the Remarketing Agent by giving 60
days' prior written notice (or seven days' prior written notice on or after the
Initial Remarketing Date if the Initial Remarketing is not successful) to the
removed Remarketing Agent, the Depositary, the Indenture Trustee and the
Purchase Contract Agent.
Notwithstanding any other provision in this Section 10, no such resignation
nor any such removal shall become effective until the Company shall have
appointed at least one nationally recognized broker-dealer as successor
Remarketing Agent and such successor Remarketing Agent shall have entered into a
with the Company, in which it shall have agreed to conduct
the Remarketing in accordance with the Remarketing Procedures. The provisions of
Sections 5, 8 and 9 shall survive the resignation or removal of any Remarketing
Agent pursuant to this Agreement.
Section 11. Dealing in the Remarketing Senior Notes.
The Remarketing Agent, when acting as a Remarketing Agent or in its
individual or any other capacity, may, to the extent permitted by law, buy,
sell, hold and deal in any of the Remarketing Senior Notes. The Remarketing
Agent may exercise any vote or join in any action which any beneficial owner of
Remarketing Senior Notes may be entitled to exercise or take pursuant to the
Indenture with like effect as if it did not act in any capacity hereunder. The
Remarketing Agent, in its individual capacity, either as principal or agent, may
also engage in or have an interest in any financial or other transaction with
the Company as freely as if it did not act in any capacity hereunder.
Section 12. Remarketing Agent's Performance; Duty of Care.
The duties and obligations of the Remarketing Agent shall be
determined solely by the express provisions of this Agreement, the Indenture and
the Senior Notes. No implied covenants or obligations of or against the
Remarketing Agent shall be read into this Agreement, the Indenture or the Senior
Notes. In the absence of bad faith on the part of the Remarketing Agent, the
Remarketing Agent may conclusively rely upon any document furnished to it, which
purports to conform to the requirements of this Agreement, the Indenture or the
Senior Notes as
22
to the truth of the statements expressed in any of such documents. The
Remarketing Agent shall be protected in acting upon any document or
communication reasonably believed by it to have been signed, presented or made
by the proper party or parties. The Remarketing Agent, acting under this
Agreement, shall incur no liability to the Company or to any holder of
Remarketing Senior Notes in its individual capacity or as Remarketing Agent for
any action or failure to act, on its part in connection with a Remarketing or
otherwise, except if such liability is judicially determined to have resulted
from the gross negligence or willful misconduct on its part.
Section 13. Termination.
This Agreement shall terminate as to the Remarketing Agent on the
effective date of the resignation or removal of the Remarketing Agent pursuant
to Section 10. In addition, the obligations of the Remarketing Agent hereunder
may be terminated by it by notice given to the Company prior to 10:00 a.m. (New
York City time) on the Remarketing Date if, prior to that time, any of the
events described in Sections 7(g), (h) and (i) shall have occurred.
Section 14. Notices.
All statements, requests, notices and agreements hereunder shall be
in writing, and:
(a) if to the Remarketing Agent, shall be delivered or sent by
mail, telex or facsimile transmission to Xxxxxxx Xxxxx Xxxxxx Inc., 000
Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000, Attention: Xxxxxx X.
Xxxxxxxxx (Fax: (000)000-0000);
(b) if to the Company shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Company set forth in the
Prospectus, Attention: Treasurer (Fax: (000) 000-0000).
Any such statements, requests, notices or agreements shall take effect at the
time of receipt thereof.
Section 15. Persons Entitled to Benefit of Agreement.
This Agreement shall inure to the benefit of and be binding upon
the Remarketing Agent, the Company and their respective successors. This
Agreement and the terms and provisions hereof are for the sole benefit of only
those persons, except that (x) the representations, warranties, indemnity and
contribution agreements and other agreements of the Company contained in this
Agreement shall also be deemed to be for the benefit of the officers and
employees of the Remarketing Agent and the person or persons, if any, who
control the Remarketing Agent within the meaning of Section 15 of the Securities
Act and (y) the indemnity and contribution agreements of the Remarketing Agent
contained in Sections 8(b) and 9 of this Agreement shall be deemed to be for the
benefit of directors, officers and employees of the Company and any person
controlling the Company within the meaning of Section 15 of the Securities Act.
Nothing contained in this Agreement is intended or shall be construed to give
any person, other than the persons referred to herein, any legal or equitable
right, remedy or claim under or in respect of this Agreement or any provision
contained herein.
23
Section 16. Survival.
The respective indemnities, representations, warranties and
agreements of the Company and the Remarketing Agent contained in this Agreement
or made by or on behalf of them, respectively, pursuant to this Agreement, shall
survive the Remarketing and shall remain in full force and effect, regardless of
any investigation made by or on behalf of any of them or any person controlling
any of them.
Section 17. Governing Law.
This Agreement shall be governed by, and construed in accordance
with, the laws of New York.
Section 18. Counterparts.
This Agreement may be executed in one or more counterparts and, if
executed in more than one counterpart, the executed counterparts shall each be
deemed to be an original but all such counterparts shall together constitute one
and the same instrument.
Section 19. Headings.
The headings herein are inserted for convenience of reference only
and are not intended to be part of, or to affect the meaning or interpretation
of, this Agreement.
If the foregoing correctly sets forth the agreement between the
Company and the Remarketing Agent, please indicate your acceptance in the space
provided for that purpose below.
Very truly yours,
DOMINION RESOURCES, INC.
By:_______________________________
Title:
Accepted:
XXXXXXX XXXXX XXXXXX INC.
By:______________________
