Exhibit 8
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DOMINION RESOURCES, INC.
and
BANK ONE TRUST COMPANY, N.A., as Collateral Agent
and
BANK ONE TRUST COMPANY, N.A., as Securities Intermediary
and
THE CHASE MANHATTAN BANK, as Purchase Contract Agent
____________________________
PLEDGE AGREEMENT
Dated as of October 12 , 2000
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Table of Contents
Page
Section 1. Definitions..................................................................................... 1
Section 2. Pledge.......................................................................................... 5
Section 2.1 Pledge................................................................................. 5
Section 2.2 Control; Financing Statement........................................................... 5
Section 2.3 Termination............................................................................ 5
Section 3. Distributions on Pledged Collateral............................................................. 5
Section 3.1 Income Distributions................................................................... 5
Section 3.2 Principal Payments Following Termination Event......................................... 6
Section 3.3 Principal Payments Prior To or On Purchase Contract Settlement Date.................... 6
Section 3.4 Payments to Purchase Contract Agent.................................................... 6
Section 3.5 Assets Not Properly Released........................................................... 6
Section 4. Control......................................................................................... 7
Section 4.1 Establishment of Collateral Account.................................................... 7
Section 4.2 Treatment as Financial Assets.......................................................... 7
Section 4.3 Sole Control by Collateral Agent....................................................... 7
Section 4.4 Securities Intermediary's Location..................................................... 7
Section 4.5 No Other Claims........................................................................ 8
Section 4.6 Investment and Release................................................................. 8
Section 4.7 Statements and Confirmations........................................................... 8
Section 4.8 Tax Allocations........................................................................ 8
Section 4.9 No Other Agreements.................................................................... 8
Section 4.10 Powers Coupled With An Interest........................................................ 8
Section 5. Initial Deposit; Establishment of Treasury PIES and Reestablishment of Corporate PIES........... 9
Section 5.1 Initial Deposit of Senior Notes........................................................ 9
Section 5.2 Establishment of Treasury PIES......................................................... 9
Section 5.3 Reestablishment of Corporate PIES...................................................... 10
Section 5.4 Termination Event...................................................................... 10
Section 5.5 Cash Settlement........................................................................ 11
Section 5.6 Early Settlement....................................................................... 13
Section 5.7 Application of Proceeds Settlement..................................................... 13
Section 6. Voting Rights................................................................................... 14
Section 7. Rights and Remedies............................................................................. 15
Section 7.1 Rights and Remedies of the Collateral Agent............................................ 15
Section 7.2 Substitutions.......................................................................... 15
Section 8. Representations and Warranties; Covenants...................................................... 16
Section 8.1 Representations and Warranties........................................................ 16
Section 8.2 Covenants............................................................................. 16
Section 9. The Collateral Agent and the Securities Intermediary........................................... 17
Section 9.1 Appointment, Powers and Immunities.................................................... 17
Section 9.2 Instructions of the Company........................................................... 18
Section 9.3 Reliance by Collateral Agent and Securities Intermediary.............................. 18
Section 9.4 Rights in Other Capacities............................................................ 18
Section 9.5 Non-Reliance on Collateral Agent and Securities Intermediary.......................... 19
Section 9.6 Compensation and Indemnity............................................................ 19
Section 9.7 Failure to Act........................................................................ 19
Section 9.8 Resignation of Collateral Agent and Securities Intermediary........................... 20
Section 9.9 Right to Appoint Agent or Advisor..................................................... 22
Section 9.10 Survival.............................................................................. 22
Section 9.11 Exculpation........................................................................... 22
Section 10. Amendment...................................................................................... 22
Section 10.1 Amendment Without Consent of Holders.................................................. 22
Section 10.2 Amendment with Consent of Holders..................................................... 23
Section 10.3 Execution of Amendments............................................................... 23
Section 10.4 Effect of Amendments.................................................................. 23
Section 10.5 Reference to Amendments............................................................... 24
Section 11. Miscellaneous.................................................................................. 24
Section 11.1 No Waiver............................................................................. 24
Section 11.2 Governing Law......................................................................... 24
Section 11.3 Notices............................................................................... 24
Section 11.4 Successors and Assigns................................................................ 25
Section 11.5 Counterparts.......................................................................... 25
Section 11.6 Severability.......................................................................... 25
Section 11.7 Expenses, etc......................................................................... 25
Section 11.8 Security Interest Absolute............................................................ 26
EXHIBIT A Instruction from Purchase Contract Agent to Collateral Agent
(Establishment of Treasury PIES)
EXHIBIT B Instruction from Collateral Agent to Securities Intermediary
(Establishment of Treasury PIES)
EXHIBIT C Instruction from Purchase Contract Agent to Collateral Agent
(Reestablishment of Corporate PIES)
EXHIBIT D Instruction from Collateral Agent to Securities Intermediary
(Reestablishment of Corporate PIES)
EXHIBIT E Notice of Cash Settlement from the Securities Intermediary to the
Purchase Contract Agent
-ii-
PLEDGE AGREEMENT
PLEDGE AGREEMENT, dated as of October 12, 2000, among DOMINION
RESOURCES, INC., a Virginia corporation (the "Company"), BANK ONE TRUST COMPANY,
N.A., a national banking association, not individually but solely as collateral
agent (in such capacity, together with its successors in such capacity, the
"Collateral Agent"), BANK ONE TRUST COMPANY, N.A., not individually but solely
in its capacity as a securities intermediary with respect to the Collateral
Account (in such capacity, together with its successors in such capacity, the
"Securities Intermediary"), and THE CHASE MANHATTAN BANK, a New York banking
corporation, not individually but solely as purchase contract agent and as
attorney-in-fact of the Holders from time to time of the Securities (in such
capacity, together with its successors in such capacity, the "Purchase Contract
Agent") under the Purchase Contract Agreement.
RECITALS
The Company and the Purchase Contract Agent are parties to the Purchase
Contract Agreement dated as of the date hereof (as modified and supplemented and
in effect from time to time, the "Purchase Contract Agreement"), pursuant to
which there may be issued up to 8,050,000 PIES (the "Securities").
Each Corporate PIES, at issuance, consists of a unit comprised of (a)
one stock purchase contract (the "Purchase Contract") under which (i) the Holder
will purchase from the Company on the Purchase Contract Settlement Date, for an
amount equal to $50 (the "Stated Amount"), a number of shares of Common Stock
equal to the Settlement Rate, and (ii) the Company will pay the Holder Contract
Adjustment Payments and (b) a 2000 Series G o% Senior Note, due ? 2006 of the
Company (a "Senior Note"), having a principal amount equal to the Stated Amount
and maturing on [October] ?, 2006.
Pursuant to the terms of the Purchase Contract Agreement and the
Purchase Contracts, the Holders of the Securities have irrevocably authorized
the Purchase Contract Agent, as attorney-in-fact of such Holders, among other
things, to execute and deliver this Agreement on behalf of such Holders and to
grant the pledge provided herein of the Collateral Account to secure the
Obligations.
Accordingly, the Company, the Collateral Agent, the Securities
Intermediary and the Purchase Contract Agent, on its own behalf and as
attorney-in-fact of the Holders from time to time of the Securities, agree as
follows:
Section 1. Definitions.
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For all purposes of this Agreement, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the singular;
(b) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Article, Section, Exhibit or other subdivision;
(c) the following terms which are defined in the UCC shall have the
meanings set forth therein: "certificated security," "control," "financial
asset," "entitlement order," "securities account" and "security entitlement;"
(d) the following terms have the meanings assigned to them in the
Purchase Contract Agreement: "Act," "Bankruptcy Code," "Board Resolution,"
"Business Day," "Cash Settlement," "Certificate," "Common Stock," "Contract
Adjustment Payments," "Corporate PIES," "Early Settlement," "Early Settlement
Amount," "Failed Remarketing," "Holder," "Officers' Certificate," "Opinion of
Counsel," "Outstanding Securities," "Person," "PIES," "Purchase Contract
Settlement Date," "Purchase Price," "Remarketing," "Remarketing Agent,"
"Remarketing Agreement," "Settlement Rate," "Supplemental Indenture,"
"Termination Event," and "Treasury PIES;" and
(e) the following terms have the meanings given to them in this
section 1(e):
"Agreement" means this Pledge Agreement, as the same may be amended,
modified or supplemented from time to time.
"Cash" means any coin or currency of the United States as at the time shall
be legal tender for payment of public and private debts.
"Collateral" means the collective reference to:
(1) the Collateral Account;
(2) all investment property and other financial assets from time to
time credited to the Collateral Account, including, without limitation, (A)
Senior Notes and security entitlements relating thereto which are a
component of the Corporate PIES from time to time, (B) any Treasury
Securities and security entitlements relating thereto delivered from time
to time upon establishment of Treasury PIES in accordance with Section 5.2
hereof and (C) payments made by Holders pursuant to Section 5.5 hereof;
(3) all Proceeds of any of the foregoing (whether such Proceeds arise
before or after the commencement of any proceeding under any applicable
bankruptcy, insolvency or other similar law, by or against the pledgor or
with respect to the pledgor); and
(4) all powers and rights now owned or hereafter acquired under or
with respect to the Collateral Account.
"Collateral Account" means the Securities Account No. o entitled "BANK ONE
TRUST COMPANY, N.A., as Collateral Agent, Securities Account (Dominion
Resources, Inc.)" maintained by the Securities Intermediary for the Purchase
Contract Agent on behalf of and as attorney-in-fact for the Holders.
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"Company" means the Person named as the "Company" in the first paragraph of
this instrument until a successor shall have become such, and thereafter
"Company" shall mean such successor.
"Obligations" means, with respect to each Holder, the collective reference
to all obligations and liabilities of such Holder under such Holder's Purchase
Contract and this Agreement or any other document made, delivered or given in
connection herewith or therewith, in each case whether on account of principal,
interest (including, without limitation, interest accruing before and after the
filing of any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to such Holder, whether or not a
claim for post-filing or post-petition interest is allowed in such proceeding),
fees, indemnities, costs, expenses or otherwise (including, without limitation,
all fees and disbursements of counsel to the Company or the Collateral Agent or
the Securities Intermediary that are required to be paid by the Holder pursuant
to the terms of any of the foregoing agreements).
"Permitted Investments" means any one of the following which shall mature
not later than the next succeeding Business Day:
(1) any evidence of indebtedness with an original maturity of 365 days
or less issued, or directly and fully guaranteed or insured, by the United
States of America or any agency or instrumentality thereof (provided that
the full faith and credit of the United States of America is pledged in
support of the timely payment thereof or such indebtedness constitutes a
general obligation of it);
(2) deposits, certificates of deposit or acceptances with an original
maturity of 365 days or less of any institution which is a member of the
Federal Reserve System having combined capital and surplus and undivided
profits of not less than $200,000,000 at the time of deposit, which may
include the Collateral Agent or any of its affiliates;
(3) investments with an original maturity of 365 days or less of any
Person that are fully and unconditionally guaranteed by a bank referred to
in clause (2);
(4) repurchase agreements and reverse repurchase agreements relating
to marketable direct obligations issued or unconditionally guaranteed by
the United States Government or issued by any agency thereof and backed as
to timely payment by the full faith and credit of the United States
Government;
(5) investments in commercial paper, other than commercial paper
issued by the Company or its affiliates, of any corporation incorporated
under the laws of the United States or any State thereof, which commercial
paper has a rating at the time of purchase at least equal to "A-1" by
Standard & Poor's Ratings Services ("S&P") or at least equal to "P-1" by
Xxxxx'x Investors Service, Inc. ("Moody's"); and
(6) investments in money market funds registered under the Investment
Company Act of 1940, as amended, rated in the highest applicable rating
category by S&P or Moody's, which may include such money market funds
offered, administered or serviced by the Collateral Agent or any of its
affiliates.
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"Pledge" means the lien and security interest created by this
Agreement.
"Pledged Senior Notes" means the Senior Notes and security entitlements
with respect thereto from time to time credited to the Collateral Account and
not then released from the Pledge.
"Pledged Treasury Securities" means Treasury Securities and security
entitlements with respect thereto from time to time credited to the Collateral
Account and not then released from the Pledge.
"Proceeds" has the meaning ascribed thereto in the UCC and includes,
without limitation, all interest, dividends, cash, instruments, securities,
financial assets (as defined in ss. 8-102(a)(9) of the UCC) and other property
received, receivable or otherwise distributed upon the sale, exchange,
collection or disposition of any financial assets from time to time held in the
Collateral Account.
"Purchase Contract Agent" has the meaning specified in the paragraph
preceding the recitals of this Agreement.
"TRADES" means the Treasury/Reserve Automated Debt Entry System
maintained by the Federal Reserve Bank of New York pursuant to the TRADES
Regulations.
"TRADES Regulations" means the regulations of the United States
Department of the Treasury, published at 31 C.F.R. Part 357, an amended from
time to time. Unless otherwise defined herein, all terms defined in the TRADES
Regulations are used herein as therein defined.
"Transfer" means:
(1) in the case of certificated securities in registered form,
delivery as provided inss. 8-301(a) of the UCC, indorsed to the
transferee or in blank by an effective indorsement
(2) in the case of Treasury Securities, registration of the
transferee as the owner of such Treasury Securities on TRADES; and
(3) in the case of security entitlements, including, without
limitation, security entitlements with respect to Treasury Securities,
a securities intermediary indicating by book entry that such security
entitlement has been credited to the transferee's securities account.
"Treasury Security" means a zero-coupon U.S. Treasury Security which
has a principal amount at maturity of $1,000 and matures on or prior to November
15, 2004.
"UCC" means the Uniform Commercial Code as in effect in the State of
New York from time to time.
4
"Value" means, with respect to any item of Collateral on any date, as to
(i) Cash, the face amount thereof, (ii) Senior Notes, the aggregate principal
amount thereof and (iii) Treasury Securities, the aggregate principal amount
thereof at maturity.
Section 2. Pledge.
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Section 2.1 Pledge.
------
Each Holder, acting through the Purchase Contract Agent as such
Holder's attorney-in-fact, hereby pledges and grants to the Collateral Agent, as
agent of and for the benefit of the Company, a continuing first priority
security interest in and to, and a lien upon and right of set off against, all
of such Holder's right, title and interest in and to the Collateral to secure
the prompt and complete payment and performance when due (whether at stated
maturity, by acceleration or otherwise) of the Obligations. The Collateral Agent
shall have all of the rights, remedies and recourses with respect to the
Collateral afforded a secured party by the UCC, in addition to, and not in
limitation of, the other rights, remedies and recourses afforded to the
Collateral Agent by this Agreement.
Section 2.2 Control; Financing Statement.
----------------------------
(a) The Collateral Agent shall have control of the Collateral Account
pursuant to the provisions of Section 4.3 of this Agreement.
(b) On the date of initial issuance of the Securities, the Company
shall file in the Office of the Secretary of State of the State of New York, a
financing statement signed by the Purchase Contract Agent, as attorney-in-fact
for the Holders, as debtors, and the Collateral Agent, describing the
Collateral.
Section 2.3 Termination.
------------------------
As to each Holder, this Agreement and the Pledge created hereby shall
terminate upon the satisfaction of such Holder's Obligations. Upon termination,
the Securities Intermediary shall Transfer the Collateral to the Purchase
Contract Agent for distribution to such Holder in accordance with its interest,
free and clear of any lien, pledge or security interest created hereby.
Section 3. Distributions on Pledged Collateral.
-----------------------------------
Section 3.1 Income Distributions.
---------------------------------
All income distributions, including interest, received by the
Securities Intermediary on account of the Senior Notes or Permitted Investments
from time to time held in the Collateral Account shall be distributed to the
Purchase Contract Agent for the benefit of the applicable Holders as provided in
the Purchase Contracts.
5
Section 3.2 Principal Payments Following Termination Event.
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All payments received by the Securities Intermediary following a
Termination Event of (1) the principal amount of Pledged Senior Notes or (2) the
principal amount of the Pledged Treasury Securities, shall be distributed to the
Purchase Contract Agent for the benefit of the applicable Holders for
distribution to such Holders in accordance with their respective interests.
Section 3.3 Principal Payments Prior To or On Purchase Contract Settlement
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Date.
----
(a) Subject to the provisions of Section 7.2, and except as provided
in clause 3.3(b) below, if, to the knowledge of the Securities Intermediary, no
Termination Event shall have occurred, all payments received by the Securities
Intermediary of (1) the principal amount with respect to the Pledged Senior
Notes or (2) the principal amount of Pledged Treasury Securities shall be held
and invested at the written direction of the Company in Permitted Investments
until the Purchase Contract Settlement Date and on the Purchase Contract
Settlement Date distributed to the Company as provided in Section 5.7 hereof.
Any balance remaining in the Collateral Account shall be distributed to the
Purchase Contract Agent for the benefit of the applicable Holders for
distribution to such Holders in accordance with their respective interests.
(b) All payments received by the Securities Intermediary of (1) the
principal amount of Senior Notes or security entitlements thereto or (2) the
principal amount of Treasury Securities or security entitlements thereto that,
in each case, have been released from the Pledge shall be distributed to the
Purchase Contract Agent for the benefit of the Holders to be distributed to such
Holders in accordance with their respective interests.
Section 3.4 Payments to Purchase Contract Agent.
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Payments to the Purchase Contract Agent hereunder shall be made to the
account designated by the Purchase Contract Agent for such purpose not later
than 12:00 p.m. (New York City time) on the Business Day such payment is
received by the Securities Intermediary; provided, however, that if such payment
is received by the Securities Intermediary on a day that is not a Business Day
or after 11:00 a.m. (New York City time) on a Business Day, then such payment
shall be made no later than 10:30 a.m. (New York City time) on the next
succeeding Business Day.
Section 3.5 Assets Not Properly Released.
-----------------------------------------
If the Purchase Contract Agent or any Holder shall receive any
principal payments on account of financial assets credited to the Collateral
Account and not released therefrom in accordance with this Agreement, the
Purchase Contract Agent or such Holder shall hold the same as trustee of an
express trust for the benefit of the Company and, upon receipt of an Officers'
Certificate so directing, promptly deliver the same to the Securities
Intermediary for credit to the Collateral Account or to the Company for
application to the obligations of the Holders under the related Purchase
Contracts, and the Purchase Contract Agent and Holders shall acquire no right,
title or interest in any such payments of principal amounts so received.
6
Section 4. Control.
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Section 4.1 Establishment of Collateral Account.
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The Securities Intermediary hereby confirms that:
(1) the Securities Intermediary has established the Collateral
Account;
(2) the Collateral Account is a securities account;
(3) subject to the terms of this Agreement, the Securities
Intermediary shall treat the Purchase Contract Agent as entitled to
exercise the rights that comprise any financial asset credited to the
Collateral Account;
(4) all property delivered to the Securities Intermediary pursuant to
this Agreement or the Purchase Contract Agreement or the Indenture will be
credited promptly to the Collateral Account; and
(5) all securities or other property underlying any financial assets
credited to the Collateral Account shall be registered in the name of the
Securities Intermediary, indorsed to the Securities Intermediary, or in
blank or credited to another securities account maintained in the name of
the Securities Intermediary, and in no case will any financial asset
credited to the Collateral Account be registered in the name of the
Purchase Contract Agent or any Holder, payable to the order of the Purchase
Contract Agent or any Holder or specially indorsed to the Purchase Contract
Agent or any Holder.
Section 4.2 Treatment as Financial Assets.
------------------------------------------
Each item of property (whether investment property, financial asset,
security, instrument or cash) credited to the Collateral Account shall be
treated as a financial asset.
Section 4.3 Sole Control by Collateral Agent.
---------------------------------------------
Except as provided in Section 6, at all times prior to the termination
of the Pledge, the Collateral Agent shall have sole control of the Collateral
Account, and the Securities Intermediary shall take instructions and directions
with respect to the Collateral Account solely from the Collateral Agent. If at
any time the Securities Intermediary shall receive an entitlement order issued
by the Collateral Agent and relating to the Collateral Account, the Securities
Intermediary shall comply with such entitlement order without further consent by
the Purchase Contract Agent or any Holder or any other Person. Until termination
of the Pledge, the Securities Intermediary will not comply with any entitlement
orders issued by the Purchase Contract Agent or any Holder.
Section 4.4 Securities Intermediary's Location.
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The Collateral Account and the rights and obligations of the
Securities Intermediary, the Collateral Agent, the Purchase Contract Agent and
the Holders with respect thereto shall be governed by the laws of the State of
New York. Regardless of any provision in
8
any other agreement, for purposes of the UCC, New York shall be deemed to be the
Securities Intermediary's location.
Section 4.5 No Other Claims.
----------------------------
Except for the claims and interest of the Collateral Agent and of the
Purchase Contract Agent and the Holders in the Collateral Account, the
Securities Intermediary does not know of any claim to, or interest in, the
Collateral Account or in any financial asset credited thereto. If any person
asserts any lien, encumbrance or adverse claim (including any writ, garnishment,
judgment, warrant of attachment, execution or similar process) against the
Collateral Account or in any financial asset carried therein, the Securities
Intermediary will promptly notify the Collateral Agent and the Purchase Contract
Agent.
Section 4.6 Investment and Release.
-----------------------------------
All proceeds of financial assets from time to time deposited in the
Collateral Account shall be invested and reinvested as provided in this
Agreement. At all times prior to termination of the Pledge, no property shall be
released from the Collateral Account except in accordance with this Agreement or
upon written instructions of the Collateral Agent.
Section 4.7 Statements and Confirmations.
-----------------------------------------
The Securities Intermediary will promptly send copies of all
statements, confirmations and other correspondence concerning the Collateral
Account and any financial assets credited thereto simultaneously to each of the
Purchase Contract Agent and the Collateral Agent at their addresses for notices
under this Agreement.
Section 4.8 Tax Allocations.
----------------------------
All items of income, gain, expense and loss recognized in the
Collateral Account shall be reported to the Internal Revenue Service and all
state and local taxing authorities under the names and taxpayer identification
numbers of the Holders that are the beneficial owners thereof. Neither the
Collateral Agent nor the Securities Intermediary shall have any responsibility
for such tax reporting.
Section 4.9 No Other Agreements.
--------------------------------
The Securities Intermediary has not entered into, and prior to the
termination of the Pledge will not enter into, any agreement with any other
Person relating to the Collateral Account or any financial assets credited
thereto, including, without limitation, any agreement to comply with entitlement
orders of any Person other than the Collateral Agent.
Section 4.10 Powers Coupled With An Interest.
---------------------------------------------
The rights and powers granted in this Section 4 to the Collateral
Agent have been granted in order to perfect its security interests in the
Collateral Account, are powers coupled with an interest and will be affected
neither by the bankruptcy of the Purchase Contract Agent or
any Holder nor by the lapse of time. The obligations of the Securities
Intermediary under this Section 4 shall continue in effect until the termination
of the Pledge.
Section 5. Initial Deposit; Establishment of Treasury PIES and Reestablishment
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of Corporate PIES.
-----------------
Section 5.1 Initial Deposit of Senior Notes.
--------------------------------------------
Prior to or concurrently with the execution and delivery of this
Agreement, the Purchase Contract Agent, on behalf of the initial Holders of the
Corporate PIES, shall Transfer to the Securities Intermediary, for credit to the
Collateral Account, the Senior Notes or security entitlements relating to such
Senior Notes, and the Securities Intermediary shall indicate by book entry that
a securities entitlement to such Senior Notes has been credited to the
Collateral Account.
Section 5.2 Establishment of Treasury PIES.
-------------------------------------------
(a) At any time on or prior to the seventh Business Day immediately
preceding the Purchase Contract Settlement Date, a Holder of Corporate PIES
shall have the right to establish or reestablish Treasury PIES by substitution
of Treasury Securities or security entitlements thereto for the Pledged Senior
Notes comprising a part of such Holder's Corporate PIES in integral multiples of
20 Corporate PIES by:
(1) transferring to the Securities Intermediary for credit to the
Collateral Account Treasury Securities or security entitlements thereto
having a Value equal to the principal amount of the Pledged Senior Notes to
be released;
(2) delivering to the Purchase Contract Agent a notice, substantially
in the form of Exhibit C to the Purchase Contract Agreement, whereupon the
Purchase Contract Agent shall deliver to the Collateral Agent a notice,
substantially in the form of Exhibit A hereto, (A) stating that such Holder
has Transferred Treasury Securities or security entitlements thereto to the
Securities Intermediary for credit to the Collateral Account, (B) stating
the Value of the Treasury Securities or security entitlements thereto
Transferred by such Holder and (C) requesting that the Collateral Agent
release from the Pledge the Pledged Senior Notes that are a component of
such Corporate PIES; and
(3) delivering the related Corporate PIES to the Purchase Contract
Agent.
Upon receipt from the Purchase Contract Agent of a notice substantially in the
form of Exhibit A hereto and confirmation that Treasury Securities or security
entitlements thereto have been credited to the Collateral Account as described
in such notice, the Collateral Agent shall instruct the Securities Intermediary
by a notice, substantially in the form of Exhibit B hereto, to release such
Pledged Senior Notes from the Pledge by Transfer to the Purchase Contract Agent
for distribution to such Holder, free and clear of any lien, pledge or security
interest created hereby.
(b) Upon credit to the Collateral Account of Treasury Securities or
security entitlements thereto delivered by a Holder of Corporate PIES and
receipt of the related instruction from the Collateral Agent, the Securities
Intermediary shall release the Pledged
9
Senior Notes specified in such instruction and shall promptly transfer the same
to the Purchase Contract Agent for distribution to such Holder, free and clear
of any lien, pledge or security interest created hereby.
Section 5.3 Reestablishment of Corporate PIES.
----------------------------------------------
(a) At any time on or prior to the seventh Business Day immediately
preceding the Purchase Contract Settlement Date, a Holder of Treasury PIES shall
have the right to reestablish Corporate PIES by substitution of Senior Notes or
security entitlements thereto for Pledged Treasury Securities in integral
multiples of 20 Treasury PIES by:
(1) transferring to the Securities Intermediary for credit to the
Collateral Account Senior Notes or security entitlements thereto having a
principal amount equal to the Value of the Pledged Treasury Securities to
be released;
(2) delivering to the Purchase Contract Agent a notice, substantially
in the form of Exhibit C to the Purchase Contract Agreement, whereupon the
Purchase Contract Agent shall deliver to the Collateral Agent a notice,
substantially in the form of Exhibit C hereto, (A) stating that such Holder
has Transferred Senior Notes or security entitlements thereto to the
Securities Intermediary for credit to the Collateral Account and (B)
requesting that the Collateral Agent release from the Pledge the Pledged
Treasury Securities related to such Treasury PIES; and
(3) delivering the related Treasury PIES to the Purchase Contract
Agent.
Upon receipt from the Purchase Contract Agent of a notice substantially in the
form of Exhibit C hereto and confirmation that Senior Notes or security
entitlements thereto have been credited to the Collateral Account as described
in such notice, the Collateral Agent shall instruct the Securities Intermediary
by a notice, substantially in the form provided in Exhibit D hereto, to release
such Pledged Treasury Securities from the Pledge by Transfer to the Purchase
Contract Agent for distribution to such Holder.
(b) Upon credit to the Collateral Account of Senior Notes or security
entitlements thereto and receipt of the related instruction from the Collateral
Agent, the Securities Intermediary shall release the applicable Pledged Treasury
Securities specified in such instruction and shall promptly Transfer the same to
the Purchase Contract Agent for distribution to such Holder, free and clear of
any lien, pledge or security interest created hereby.
Section 5.4 Termination Event.
------------------------------
(a) Upon receipt by the Collateral Agent of written notice from the
Company or the Purchase Contract Agent that a Termination Event has occurred,
the Collateral Agent shall release all Collateral from the Pledge and shall
promptly Transfer any Pledged Senior Notes and any Pledged Treasury Securities
to the Purchase Contract Agent for the benefit of the Holders, for distribution
to such Holders in accordance with their respective interests, free and clear of
any lien, pledge or security interest or other interest created hereby.
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(b) If such Termination Event shall result from the Company's
becoming a debtor under the Bankruptcy Code, and if the Collateral Agent shall
for any reason fail promptly to effectuate the release and Transfer of all
Pledged Senior Notes or the Pledged Treasury Securities, as the case may be, as
provided by this Section 5.4, the Purchase Contract Agent shall:
(1) request an opinion letter of a nationally recognized law firm
reasonably acceptable to the Collateral Agent to the effect that, as a
result of the Company's being the debtor in such a bankruptcy case, the
Collateral Agent will not be prohibited from releasing or Transferring the
Collateral as provided in this Section 5.4, and shall deliver such opinion
to the Collateral Agent within ten days after the occurrence of such
Termination Event, and if (A) the Purchase Contract Agent shall be unable
to obtain such opinion within ten days after the occurrence of such
Termination Event or (B) the Collateral Agent shall continue, after
delivery of such opinion, to refuse to effectuate the release and Transfer
of all Pledged Senior Notes, all the Pledged Treasury Securities or the
Proceeds of any of the foregoing, as the case may be, as provided in this
Section 5.4, then the Purchase Contract Agent shall within thirty days
after the occurrence of such Termination Event commence an action or
proceeding in the court having jurisdiction of the Company's case under the
Bankruptcy Code seeking an order requiring the Collateral Agent to
effectuate the release and transfer of all Pledged Senior Notes or all the
Pledged Treasury Securities, as the case may be, as provided by this
Section 5.4; or
(2) commence an action or proceeding like that described in clause
5.4(b)(1)(B) hereof within ten days after the occurrence of such
Termination Event.
The Purchase Contract Agent shall be deemed to have complied with Section
5.4(b)(1), and shall not be required to commence any action or proceeding
referred to therein, if it shall have either obtained such an opinion letter or
requested such an opinion from three such nationally recognized law firms
reasonably acceptable to the Collateral Agent.
Section 5.5 Cash Settlement.
----------------------------
(a) Upon receipt by the Collateral Agent of (1) a notice from the
Purchase Contract Agent promptly after the receipt by the Purchase Contract
Agent of a notice that a Holder of a Corporate PIES or Treasury PIES has
elected, in accordance with the procedures specified in Section 5.4(a)(i) or
(d)(i) of the Purchase Contract Agreement, respectively, to effect a Cash
Settlement and (2) payment by such Holder by deposit in the Collateral Account
on or prior to 11:00 a.m. (New York City time) on the fifth Business Day
immediately preceding the Purchase Contract Settlement Date in the case of
Corporate PIES, and the Business Day immediately preceding the Purchase Contract
Settlement Date in the case of the Treasury PIES, of the Purchase Price in
lawful money of the United States by certified or cashier's check or wire
transfer of immediately available funds payable to or upon the order of the
Securities Intermediary, then the Collateral Agent shall upon receipt of written
directions from the Company:
(1) instruct the Securities Intermediary promptly to invest any such
Cash in Permitted Investments;
11
(2) release from the Pledge (i) in the case of a Holder of Corporate
PIES, the related Pledged Senior Notes, or (ii) in the case of a Holder of
Treasury PIES, the related Pledged Treasury Securities, with a principal
amount or principal amount at maturity, as the case may be, equal to the
product of (x) the Stated Amount times (y) the number of Purchase Contracts
as to which such Holder has elected to effect a Cash Settlement pursuant to
this Section 5.5(a); and
(3) instruct the Securities Intermediary to Transfer all such Pledged
Senior Notes or Pledged Treasury Securities, as the case may be, to the
Purchase Contract Agent for the benefit of such Holders, in each case free
and clear of the Pledge created hereby, for distribution to such Holder.
Upon receipt of the proceeds upon the maturity of the Permitted Investments on
the Purchase Contract Settlement Date, the Collateral Agent shall (A) instruct
the Securities Intermediary to pay the portion of such proceeds and deliver any
certified or cashier's checks received, in an aggregate amount equal to the
Purchase Price, to the Company on the Purchase Contract Settlement Date, and (B)
instruct the Securities Intermediary to release any amounts in respect of the
interest earned from such Permitted Investments to the Purchase Contract Agent
for distribution to such Holder.
(b) If a Holder of a Corporate PIES notifies the Purchase Contract
Agent as provided in paragraph 5.4(a)(i) of the Purchase Contract Agreement of
its intention to pay the Purchase Price in cash, but fails to make such payment
as required by paragraph 5.4(a)(ii) of the Purchase Contract Agreement, such
Holder shall be deemed to have consented to the disposition of the Pledged
Senior Notes of such Holder in accordance with paragraph 5.4(a)(iii) of the
Purchase Contract Agreement.
(c) If a Holder of a Treasury PIES notifies the Purchase Contract
Agent as provided in paragraph 5.4(d)(i) of the Purchase Contract Agreement of
its intention to pay the Purchase Price in cash, but fails to make such payment
as required by paragraph 5.4(d)(ii) of the Purchase Contract Agreement, such
Holder shall be deemed to have elected to pay the Purchase Price in accordance
with paragraph 5.4(d)(iii) of the Purchase Contract Agreement.
(d) Prior to 3:00 p.m. (New York City time) on the fourth Business
Day immediately preceding the Purchase Contract Settlement Date, the Securities
Intermediary shall deliver to the Purchase Contract Agent a notice,
substantially in the form of Exhibit E hereto, stating the amount of cash that
it has received with respect to the Cash Settlement of Corporate PIES.
(e) Prior to 3:00 p.m. (New York City time) on the Business Day
immediately preceding the Purchase Contract Settlement Date, the Securities
Intermediary shall deliver to the Purchase Contract Agent a notice,
substantially in the form of Exhibit E hereto, stating the amount of cash that
it has received with respect to the Cash Settlement of Treasury PIES.
12
Section 5.6 Early Settlement.
-----------------------------
Upon receipt by the Collateral Agent of a notice from the Purchase
Contract Agent that a Holder of Securities has elected to effect Early
Settlement of its obligations under the Purchase Contracts forming a part of
such Securities in accordance with the terms of the Purchase Contracts and
Section 5.9 of the Purchase Contract Agreement (which notice shall set forth the
number of such Purchase Contracts as to which such Holder has elected to effect
Early Settlement), and that the Purchase Contract Agent has received from such
Holder, and paid to the Company as confirmed in writing by the Company, the
related Early Settlement Amounts pursuant to the terms of the Purchase Contracts
and the Purchase Contract Agreement and that all conditions to such Early
Settlement have been satisfied, then the Collateral Agent shall release from the
Pledge, (1) Pledged Senior Notes, in the case of a Holder of Corporate PIES, or
(2) Pledged Treasury Securities, in the case of a Holder of Treasury PIES, with
a Value equal to the product of (i) the Stated Amount times (ii) the number of
Purchase Contracts as to which such Holder has elected to effect Early
Settlement, and shall instruct the Securities Intermediary to Transfer all such
Pledged Senior Notes or Pledged Treasury Securities, as the case may be, to the
Purchase Contract Agent for the benefit of such Holder, in each case free and
clear of the Pledge created hereby, for distribution to such Holder.
Section 5.7 Application of Proceeds Settlement.
-----------------------------------------------
(a) If a Holder of Corporate PIES has not elected to make an
effective Cash Settlement by notifying the Purchase Contract Agent in the manner
provided for in Section 5.4(a)(i) in the Purchase Contract Agreement, or has
given such notice but failed to deliver the required cash prior to 11:00 a.m.
(New York City time) on the fifth Business Day immediately preceding the
Purchase Contract Settlement Date, such Holder shall be deemed to have elected
to pay for the shares of Common Stock to be issued under such Purchase Contracts
from the Proceeds of the related Pledged Senior Notes. In such event, the
Purchase Contract Agent will send a notice to the Collateral Agent directing it
to instruct the Securities Intermediary to Transfer the related Pledged Senior
Notes to the Remarketing Agent for Remarketing. Upon receiving such Pledged
Senior Notes, the Remarketing Agent, pursuant to the terms of the Remarketing
Agreement, will use commercially reasonable efforts to remarket such Pledged
Senior Notes on such date at a price of 100.25% of the aggregate principal
amount of such Pledged Senior Notes. The Remarketing Agent will deposit in the
Collateral Account the portion of the Proceeds of such remarketing equal to 100%
the aggregate principal amount of the remarketed Pledged Senior Notes and,
pursuant to the Remarketing Agreement, shall retain the portion of the Proceeds
equal to 0.25% of the aggregate principal amount of the remarketed Pledged
Senior Notes. On the Purchase Contract Settlement Date, the Collateral Agent
shall instruct the Securities Intermediary to apply a portion of the Proceeds
from such Remarketing equal to the aggregate principal amount of such Pledged
Senior Notes to satisfy in full the obligations of such Holders of Corporate
PIES to pay the Purchase Price to purchase the shares of Common Stock under the
related Purchase Contracts.
If the Remarketing Agent advises the Collateral Agent in writing
that there has been a Failed Remarketing, thus resulting in an event of default
under the Purchase Contract Agreement and hereunder, the Collateral Agent, for
the benefit of the Company shall, at the written direction of the Company,
dispose of the Pledged Senior Notes in accordance with
13
applicable law and satisfy in full, from such disposition, such Holders'
obligations to pay the Purchase Price for the shares of Common Stock.
Notwithstanding the foregoing, the Company shall pay any accrued and unpaid
interest on the Pledged Senior Notes in cash to the Purchase Contract Agent for
payment to such Holders of Corporate PIES of which such Pledged Senior Notes are
a part.
(b) If a Holder of Treasury PIES has not elected to make an effective
Cash Settlement by notifying the Purchase Contract Agent in the manner provided
for in Section 5.4(d)(i) of the Purchase Contract Agreement, or has given such
notice but failed to make such payment in the manner required by Section
5.4(d)(ii) of the Purchase Contract Agreement, such Holder shall be deemed to
have elected to pay for the shares of Common Stock to be issued under such
Purchase Contracts from the Proceeds of the related Pledged Treasury Securities.
Upon maturity of the Pledged Treasury Securities, the Securities Intermediary,
at the written direction of the Collateral Agent, shall invest the Cash Proceeds
of the maturing Pledged Treasury Securities in Permitted Investments. Without
receiving any instruction from any such Holder of Treasury PIES, the Collateral
Agent shall apply the Proceeds of the related Pledged Treasury Securities to
satisfy in full such Holder's obligations to pay the Purchase Price to purchase
the shares of Common Stock under the related Purchase Contracts. In the event
the sum of the Proceeds from the related Pledged Treasury Securities and the
investment earnings from the investment in Permitted Investments exceeds the
aggregate Purchase Price of the Purchase Contracts being settled thereby, the
Collateral Agent shall instruct the Securities Intermediary to distribute such
excess, when received, to the Purchase Contract Agent for the benefit of such
Holder for distribution to such Holder.
Section 6. Voting Rights.
-------------
The Purchase Contract Agent may exercise, or refrain from exercising,
any and all voting and other consensual rights pertaining to the Pledged Senior
Notes or any part thereof for any purpose not inconsistent with the terms of
this Agreement and in accordance with the terms of the Purchase Contract
Agreement; provided, that the Purchase Contract Agent shall not exercise or
shall not refrain from exercising such right, as the case may be, if, in the
judgment of the Purchase Contract Agent, such action would impair or otherwise
have a material adverse effect on the value of all or any of the Pledged Senior
Notes; and provided, further, that the Purchase Contract Agent shall give the
Company and the Collateral Agent at least five days' prior written notice of the
manner in which it intends to exercise, or its reasons for refraining from
exercising, any such right. Upon receipt of any notices and other communications
in respect of any Pledged Senior Notes, including notice of any meeting at which
holders of the Senior Notes are entitled to vote or solicitation of consents,
waivers or proxies of holders of the Senior Notes, the Collateral Agent shall
use reasonable efforts to send promptly to the Purchase Contract Agent such
notice or communication, and as soon as reasonably practicable after receipt of
a written request therefor from the Purchase Contract Agent, execute and deliver
to the Purchase Contract Agent such proxies and other instruments in respect of
such Pledged Senior Notes (in form and substance satisfactory to the Collateral
Agent) as are prepared by the Purchase Contract Agent with respect to the
Pledged Senior Notes.
14
Section 7. Rights and Remedies.
-------------------
Section 7.1 Rights and Remedies of the Collateral Agent.
--------------------------------------------------------
(a) In addition to the rights and remedies specified in Section 5.5
hereof or otherwise available at law or in equity, after an event of default (as
specified in Section 7.1(b) below) hereunder, the Collateral Agent shall have
all of the rights and remedies with respect to the Collateral of a secured party
under the UCC (whether or not the UCC is in effect in the jurisdiction where the
rights and remedies are asserted) and the TRADES Regulations and such additional
rights and remedies to which a secured party is entitled under the laws in
effect in any jurisdiction where any rights and remedies hereunder may be
asserted. Without limiting the generality of the foregoing, such remedies may
include, to the extent permitted by applicable law, (i) retention of the Pledged
Senior Notes in full satisfaction of the Holders' obligations under the Purchase
Contracts or (ii) sale of the Pledged Senior Notes in one or more public or
private sales.
(b) Without limiting any rights or powers otherwise granted by this
Agreement to the Collateral Agent, in the event the Collateral Agent is unable
to make payments to the Company on account of principal payments of any Pledged
Treasury Securities as provided in Section 3 hereof, in satisfaction of the
Obligations of the Holder of the Securities of which such Pledged Treasury
Securities are a part under the related Purchase Contracts, the inability to
make such payments shall constitute an event of default hereunder and the
Collateral Agent shall have and may exercise, with reference to such Pledged
Treasury Securities and such Obligations of such Holder, any and all of the
rights and remedies available to a secured party under the UCC and the TRADES
Regulations after default by a debtor, and as otherwise granted herein or under
any other law.
(c) Without limiting any rights or powers otherwise granted by this
Agreement to the Collateral Agent, the Collateral Agent is hereby irrevocably
authorized to receive and collect all payments of (i) the principal amount of
the Pledged Senior Notes and (ii) the principal amount of the Pledged Treasury
Securities, subject, in each case, to the provisions of Section 3 hereof, and as
otherwise granted herein.
(d) The Purchase Contract Agent and each Holder of Securities agrees
that, from time to time, upon the written request of the Collateral Agent, the
Purchase Contract Agent or such Holder shall execute and deliver such further
documents and do such other acts and things as the Collateral Agent may
reasonably request in order to maintain the Pledge, and the perfection and
priority thereof, and to confirm the rights of the Collateral Agent hereunder.
The Purchase Contract Agent shall have no liability to any Holder for executing
any documents or taking any such acts requested by the Collateral Agent
hereunder, except for liability for its own negligent acts, its own negligent
failure to act or its own willful misconduct.
Section 7.2 Substitutions.
--------------------------
Whenever a Holder has the right to substitute Treasury Securities,
Senior Notes or security entitlements to either of them for financial assets
held in the Collateral Account, such substitution shall not constitute a
novation of the security interest created hereby.
15
Section 8. Representations and Warranties; Covenants.
-----------------------------------------
Section 8.1 Representations and Warranties.
------------------------------------------
Each Holder from time to time, acting through the Purchase Contract
Agent as attorney-in-fact (it being understood that the Purchase Contract Agent
shall not be liable for any representation or warranty made by or on behalf of a
Holder), hereby represents and warrants to the Collateral Agent (with respect to
its interest in the Collateral), which representations and warranties shall be
deemed repeated on each day a Holder Transfers Collateral that:
(1) such Holder has the power to grant a security interest in and
lien on the Collateral;
(2) such Holder is the sole beneficial owner of the Collateral and,
in the case of Collateral delivered in physical form, is the sole holder of
such Collateral and is the sole beneficial owner of, or has the right to
Transfer, the Collateral it Transfers to the Securities Intermediary for
credit to the Collateral Account, free and clear of any security interest,
lien, encumbrance, call, liability to pay money or other restriction other
than the security interest and lien granted under Section 2 hereof;
(3) upon the Transfer of the Collateral to the Securities
Intermediary for credit to the Collateral Account, the Collateral Agent,
for the benefit of the Company, will have a valid and perfected first
priority security interest therein (assuming that any central clearing
operation or any securities intermediary or other entity not within the
control of the Holder involved in the Transfer of the Collateral, including
the Collateral Agent and the Securities Intermediary, gives the notices and
takes the action required of it hereunder and under applicable law for
perfection of that interest and assuming the establishment and exercise of
control pursuant to Section 4 hereof); and
(4) the execution and performance by the Holder of its obligations
under this Agreement will not result in the creation of any security
interest, lien or other encumbrance on the Collateral other than the
security interest and lien granted under Section 2 hereof or violate any
provision of any existing law or regulation applicable to it or of any
mortgage, charge, pledge, indenture, contract or undertaking to which it is
a party or which is binding on it or any of its assets.
Section 8.2 Covenants.
---------------------
The Purchase Contract Agent and the Holders from time to time,
acting through the Purchase Contract Agent as their attorney-in-fact (it being
understood that the Purchase Contract Agent shall not be liable for any covenant
made by or on behalf of a Holder), hereby covenant to the Collateral Agent that
for so long as the Collateral remains subject to the Pledge:
(1) neither the Purchase Contract Agent nor such Holders will create
or purport to create or allow to subsist any mortgage, charge, lien, pledge
or any other security interest whatsoever over the Collateral or any part
of it other than pursuant to this Agreement; and
16
(2) neither the Purchase Contract Agent nor such Holders will sell or
otherwise dispose (or attempt to dispose) of the Collateral or any part of
it except for the beneficial interest therein, subject to the Pledge
hereunder, transferred in connection with the Transfer of the Securities.
Section 9. The Collateral Agent and the Securities Intermediary.
----------------------------------------------------
It is hereby agreed as follows:
Section 9.1 Appointment, Powers and Immunities.
----------------------------------------------
The Collateral Agent and the Securities Intermediary shall each act as
agent for the Company hereunder with such powers as are specifically vested in
the Collateral Agent or the Securities Intermediary, as the case may be, by the
terms of this Agreement, together with such other powers as are reasonably
incidental thereto. The Collateral Agent and the Securities Intermediary shall:
(1) have no duties or responsibilities except those expressly set
forth in this Agreement and no implied covenants or obligations shall be
inferred from this Agreement against the Collateral Agent or the Securities
Intermediary, nor shall the Collateral Agent or the Securities Intermediary
be bound by the provisions of any agreement by any party hereto beyond the
specific terms hereof;
(2) not be responsible for any recitals contained in this Agreement,
or in any certificate or other document referred to or provided for in, or
received by it under, this Agreement, the Securities or the Purchase
Contract Agreement, or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement (other than as against the
Collateral Agent or the Securities Intermediary, as the case may be), the
Securities or the Purchase Contract Agreement or any other document
referred to or provided for herein or therein or for any failure by the
Company or any other Person (except the Collateral Agent or the Securities
Intermediary, as the case may be) to perform any of its obligations
hereunder or thereunder or for the perfection, priority or, except, in the
case of the Collateral Agent, as expressly required hereby, maintenance of
any security interest created hereunder;
(3) not be required to initiate or conduct any litigation or
collection proceedings hereunder (except, in the case of the Collateral
Agent, pursuant to directions furnished under Section 9.2 hereof, subject
to Section 9.6 hereof);
(4) not be responsible for any action taken or omitted to be taken by
it hereunder or under any other document or instrument referred to or
provided for herein or in connection herewith or therewith, except for its
own negligence or willful misconduct; and
(5) not be required to advise any party as to selling or retaining,
or taking or refraining from taking any action with respect to, any
securities or other property deposited hereunder.
17
Subject to the foregoing, during the term of this Agreement, the Collateral
Agent shall take all reasonable action in connection with the safekeeping and
preservation of the Collateral hereunder.
No provision of this Agreement shall require the Collateral Agent to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder. In no event shall the Collateral
Agent or the Securities Intermediary be liable for any amount in excess of the
Value of the Collateral. Notwithstanding the foregoing, each of the Collateral
Agent and the Securities Intermediary in its individual capacity hereby waives
any right of setoff, bankers' lien, liens or perfection rights as securities
intermediary or any counterclaim with respect to any of the Collateral.
Section 9.2 Instructions of the Company.
---------------------------------------
The Company shall have the right, by one or more instruments in
writing executed and delivered to the Collateral Agent, to direct the time,
method and place of conducting any proceeding for the realization of any right
or remedy available to the Collateral Agent, or of exercising any power
conferred on the Collateral Agent, or to direct the taking or refraining from
taking of any action authorized by this Agreement; provided, however, that (i)
such direction shall not conflict with the provisions of any law or of this
Agreement and (ii) the Collateral Agent shall be adequately indemnified as
provided herein. Nothing contained in this Section 9.2 shall impair the right of
the Collateral Agent in its discretion to take any action or omit to take any
action which it deems proper and which is not inconsistent with such direction.
Section 9.3 Reliance by Collateral Agent and Securities Intermediary.
--------------------------------------------------------------------
Each of the Securities Intermediary and the Collateral Agent shall be
entitled to rely upon any certification, order, judgment, opinion, notice or
other communication (including, without limitation, any thereof by telephone,
telecopy, telex or facsimile) believed by it to be genuine and correct and to
have been signed or sent by or on behalf of the proper Person or Persons
(without being required to determine the correctness of any fact stated therein)
and upon advice and statements of legal counsel and other experts selected by
the Collateral Agent or the Securities Intermediary, as the case may be. As to
any matters not expressly provided for by this Agreement, the Collateral Agent
and the Securities Intermediary shall in all cases be fully protected in acting,
or in refraining from acting, hereunder in accordance with instructions given by
the Company in accordance with this Agreement.
Section 9.4 Rights in Other Capacities.
--------------------------------------
The Collateral Agent and the Securities Intermediary and their
affiliates may (without having to account therefor to the Company) accept
deposits from, lend money to, make their investments in and generally engage in
any kind of banking, trust or other business with the Purchase Contract Agent or
the Securities Intermediary, as the case may be, any other Person interested
herein and any Holder of Securities (and any of their respective subsidiaries or
affiliates) as if it were not acting as the Collateral Agent or the Securities
Intermediary, as the case may be, and the Collateral Agent, the Securities
Intermediary and their affiliates may accept
18
fees and other consideration from the Purchase Contract Agent and any Holder of
Securities without having to account for the same to the Company; provided that
each of the Securities Intermediary and the Collateral Agent covenants and
agrees with the Company that it shall not accept, receive or permit there to be
created in favor of itself and shall take no affirmative action to permit there
to be created in favor of any other Person, any security interest, lien or other
encumbrance of any kind in or upon the Collateral other than the lien created by
the Pledge.
Section 9.5 Non-Reliance on Collateral Agent and Securities Intermediary.
------------------------------------------------------------------------
Neither the Securities Intermediary nor the Collateral Agent shall be
required to keep itself informed as to the performance or observance by the
Purchase Contract Agent or any Holder of Securities of this Agreement, the
Purchase Contract Agreement, the Securities or any other document referred to or
provided for herein or therein or to inspect the properties or books of the
Purchase Contract Agent or any Holder of Securities. Neither the Collateral
Agent nor the Securities Intermediary shall have any duty or responsibility to
provide the Company with any credit or other information concerning the affairs,
financial condition or business of the Purchase Contract Agent or any Holder of
Securities (or any of their respective affiliates) that may come into the
possession of the Collateral Agent or the Securities Intermediary or any of
their respective affiliates.
Section 9.6 Compensation and Indemnity.
--------------------------------------
The Company agrees to:
(1) pay the Collateral Agent and the Securities Intermediary from
time to time such compensation as shall be agreed in writing between the
Company and the Collateral Agent or the Securities Intermediary, as the
case may be, for all services rendered by them hereunder; and
(2) indemnify the Collateral Agent and the Securities Intermediary
for, and to hold each of them harmless from and against, any loss,
liability or reasonable out-of-pocket expense incurred without negligence,
willful misconduct or bad faith on its part, arising out of or in
connection with the acceptance or administration of its powers and duties
under this Agreement, including the reasonable costs and expenses
(including reasonable fees and expenses of counsel) of defending itself
against any claim or liability in connection with the exercise or
performance of such powers and duties.
Section 9.7 Failure to Act.
--------------------------
In the event of any ambiguity in the provisions of this Agreement or
any dispute between or conflicting claims by or among the parties hereto or any
other Person with respect to any funds or property deposited hereunder, the
Collateral Agent and the Securities Intermediary shall be entitled, after prompt
notice to the Company and the Purchase Contract Agent, at its sole option, to
refuse to comply with any and all claims, demands or instructions with respect
to such property or funds so long as such dispute or conflict shall continue,
and the Collateral Agent and the Securities Intermediary shall not be or become
liable in any way to any of the parties hereto
19
for its failure or refusal to comply with such conflicting claims, demands or
instructions. The Collateral Agent and the Securities Intermediary shall be
entitled to refuse to act until either:
(1) such conflicting or adverse claims or demands shall have been
finally determined by a court of competent jurisdiction or settled by
agreement between the conflicting parties as evidenced in a writing
satisfactory to the Collateral Agent or the Securities Intermediary; or
(2) the Collateral Agent or the Securities Intermediary shall have
received security or an indemnity satisfactory to it sufficient to save it
harmless from and against any and all loss, liability or reasonable out-of-
pocket expense which it may incur by reason of its acting.
The Collateral Agent and the Securities Intermediary may in addition elect to
commence an interpleader action or seek other judicial relief or orders as the
Collateral Agent or the Securities Intermediary may deem necessary.
Notwithstanding anything contained herein to the contrary, neither the
Collateral Agent nor the Securities Intermediary shall be required to take any
action that is in its opinion contrary to law or to the terms of this Agreement,
or which would in its opinion subject it or any of its officers, employees or
directors to liability.
Section 9.8 Resignation of Collateral Agent and Securities Intermediary.
-----------------------------------------------------------------------
(a) Subject to the appointment and acceptance of a successor
Collateral Agent as provided below:
(1) the Collateral Agent may resign at any time by giving notice
thereof to the Company and the Purchase Contract Agent as attorney-in-fact
for the Holders of Securities;
(2) the Collateral Agent may be removed at any time by the Company;
and
(3) if the Collateral Agent fails to perform any of its material
obligations hereunder in any material respect for a period of not less than
20 days after receiving written notice of such failure by the Purchase
Contract Agent and such failure shall be continuing, the Collateral Agent
may be removed by the Purchase Contract Agent.
The Purchase Contract Agent shall promptly notify the Company of any removal of
the Collateral Agent pursuant to clause (3) of the immediately preceding
sentence. Upon any such resignation or removal, the Company shall have the right
to appoint a successor Collateral Agent. If no successor Collateral Agent shall
have been so appointed and shall have accepted such appointment within 30 days
after the retiring Collateral Agent's giving of notice of resignation or such
removal, then the retiring Collateral Agent may petition any court of competent
jurisdiction for the appointment of a successor Collateral Agent. The Collateral
Agent shall be a bank which has an office in New York, New York with a combined
capital and surplus of at least $50,000,000 and shall not be the Purchase
Contract Agent or any of its affiliates. Upon the acceptance of any appointment
as Collateral Agent hereunder by a successor Collateral Agent, such successor
Collateral Agent shall thereupon succeed to and become vested with all the
20
rights, powers, privileges and duties of the retiring Collateral Agent, and the
retiring Collateral Agent shall take all appropriate action to transfer any
money and property held by it hereunder (including the Collateral) to such
successor Collateral Agent. The retiring Collateral Agent shall, upon such
succession, be discharged from its duties and obligations as Collateral Agent
hereunder. After any retiring Collateral Agent's resignation hereunder as
Collateral Agent, the provisions of this Section 9 shall continue in effect for
its benefit in respect of any actions taken or omitted to be taken by it while
it was acting as the Collateral Agent. Any resignation or removal of the
Collateral Agent hereunder shall be deemed for all purposes of this Agreement as
the simultaneous resignation or removal, as the case may be, of the Securities
Intermediary.
(b) Subject to the appointment and acceptance of a successor
Securities Intermediary as provided below:
(1) the Securities Intermediary may resign at any time by giving
notice thereof to the Company and the Purchase Contract Agent as attorney-
in-fact for the Holders of Securities;
(2) the Securities Intermediary may be removed at any time by the
Company; and
(3) if the Securities Intermediary fails to perform any of its
material obligations hereunder in any material respect for a period of not
less than 20 days after receiving written notice of such failure by the
Purchase Contract Agent and such failure shall be continuing, the
Securities Intermediary may be removed by the Purchase Contract Agent.
The Purchase Contract Agent shall promptly notify the Company of any removal of
the Securities Intermediary pursuant to clause (3) of the immediately preceding
sentence. Upon any such resignation or removal, the Company shall have the right
to appoint a successor Securities Intermediary. If no successor Securities
Intermediary shall have been so appointed and shall have accepted such
appointment within 30 days after the retiring Securities Intermediary's giving
of notice of resignation or such removal, then the retiring Securities
Intermediary may petition any court of competent jurisdiction for the
appointment of a successor Securities Intermediary. The Securities Intermediary
shall be a bank which has an office in New York, New York with a combined
capital and surplus of at least $50,000,000 and shall not be the Purchase
Contract Agent or any of its affiliates. Upon the acceptance of any appointment
as Securities Intermediary hereunder by a successor Securities Intermediary,
such successor Securities Intermediary shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring
Securities Intermediary, and the retiring Securities Intermediary shall take all
appropriate action to transfer any money and property held by it hereunder
(including the Collateral) to such successor Securities Intermediary. The
retiring Securities Intermediary shall, upon such succession, be discharged from
its duties and obligations as Securities Intermediary hereunder. After any
retiring Securities Intermediary's resignation hereunder as Securities
Intermediary, the provisions of this Section 9 shall continue in effect for its
benefit in respect of any actions taken or omitted to be taken by it while it
was acting as the Securities Intermediary.
21
Section 9.9 Right to Appoint Agent or Advisor.
----------------------------------------------
The Collateral Agent shall have the right to appoint agents or
advisors in connection with any of its duties hereunder, and the Collateral
Agent shall not be liable for any action taken or omitted by, or in reliance
upon the advice of, such agents or advisors selected in good faith. The
appointment of agents pursuant to this Section 9.9 shall be subject to prior
consent of the Company, which consent shall not be unreasonably withheld.
Section 9.10 Survival.
---------------------
The provisions of this Section 9 shall survive termination of this
Agreement and the resignation or removal of the Collateral Agent or the
Securities Intermediary.
Section 9.11 Exculpation.
------------------------
Anything contained in this Agreement to the contrary notwithstanding,
in no event shall the Collateral Agent or the Securities Intermediary or their
officers, directors, employees or agents be liable under this Agreement to any
third party for indirect, special, punitive or consequential loss or damage of
any kind whatsoever, including lost profits, whether or not the likelihood of
such loss or damage was known to the Collateral Agent or the Securities
Intermediary, or any of them, incurred without any act or deed that is found to
be attributable to gross negligence or willful misconduct on the part of the
Collateral Agent or the Securities Intermediary.
Section 10. Amendment.
---------
Section 10.1 Amendment Without Consent of Holders.
--------------------------------------------------
Without the consent of any Holders, the Company (when authorized by a
Board Resolution), the Collateral Agent, the Securities Intermediary and the
Purchase Contract Agent, at any time and from time to time, may amend this
Agreement, in form satisfactory to the Company, the Collateral Agent, the
Securities Intermediary and the Purchase Contract Agent, to:
(1) evidence the succession of another Person to the Company, and the
assumption to by any such successor of the covenants of the Company;
(2) evidence and provide for the acceptance of appointment hereunder
by a successor Collateral Agent, Securities Intermediary or Purchase
Contract Agent;
(3) add to the covenants of the Company for the benefit of the
Holders, or to surrender any right or power herein conferred upon the
Company, provided such covenants or such surrender do not adversely affect
the validity, perfection or priority of the Pledge created hereunder; or
(4) cure any ambiguity (or formal defect), to correct or supplement
any provisions herein which may be inconsistent with any other such
provisions herein, or to make any other provisions with respect to such
matters or questions arising under this Agreement, provided such action
shall not adversely affect the interests of the Holders.
22
Section 10.2 Amendment with Consent of Holders.
----------------------------------------------
With the consent of the Holders of not less than a majority of the
Purchase Contracts at the time outstanding, by Act of said Holders delivered to
the Company, the Purchase Contract Agent, the Securities Intermediary and the
Collateral Agent the Company, when duly authorized by a Board Resolution, the
Purchase Contract Agent, the Securities Intermediary and the Collateral Agent
may amend this Agreement for the purpose of modifying in any manner the
provisions of this Agreement or the rights of the Holders in respect of the
Securities; provided, however, that no such supplemental agreement shall,
without the unanimous consent of the Holders of each Outstanding Security
adversely affected thereby,
(1) change the amount or type of Collateral underlying a Security,
impair the right of the Holder of any Security to receive distributions on
the underlying Collateral or otherwise adversely affect the Holder's rights
in or to such Collateral;
(2) otherwise effect any action that would require the consent of the
Holder of each Outstanding Security affected thereby pursuant to the
Purchase Contract Agreement if such action were effected by an agreement
supplemental thereto; or
(3) reduce the percentage of Purchase Contracts the consent of whose
Holders is required for any such amendment;
provided that if any amendment or proposal referred to above would adversely
affect only the Corporate PIES or only the Treasury PIES, then only the affected
class of Holder as of the record date for the Holders entitled to vote thereon
will be entitled to vote on such amendment or proposal, and such amendment or
proposal shall not be effective except with the consent of Holders of not less
than a majority of such class; provided, further, that the unanimous consent of
the Holders of each outstanding Purchase Contract of such class affected thereby
shall be required to approve any amendment or proposal specified in clauses (1)
through (3) above.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed amendment, but it shall be
sufficient if such Act shall approve the substance thereof.
Section 10.3 Execution of Amendments.
------------------------------------
In executing any amendment permitted by this Section, the Collateral
Agent, the Securities Intermediary and the Purchase Contract Agent shall be
entitled to receive and (subject to Section 7.1 of the Purchase Contract
Agreement with respect to the Purchase Contract Agent) shall be fully protected
in relying upon, an Opinion of Counsel stating that the execution of such
amendment is authorized or permitted by this Agreement and that all conditions
precedent, if any, to the execution and delivery of such amendment have been
satisfied.
Section 10.4 Effect of Amendments.
---------------------------------
Upon the execution of any amendment under this Section, this Agreement
shall be modified in accordance therewith, and such amendment shall form a part
of this Agreement for all purposes; and every Holder of Certificates theretofore
or thereafter authenticated, executed on
23
behalf of the Holders and delivered under the Purchase Contract Agreement shall
be bound thereby.
Section 10.5 Reference to Amendments.
------------------------------------
Certificates authenticated, executed on behalf of the Holders and
delivered after the execution of any amendment pursuant to this Section may, and
shall if required by the Collateral Agent or the Purchase Contract Agent, bear a
notation in form approved by the Purchase Contract Agent and the Collateral
Agent as to any matter provided for in such amendment. If the Company shall so
determine, new Security Certificates so modified as to conform, in the opinion
of the Collateral Agent, the Purchase Contract Agent and the Company, to any
such amendment may be prepared and executed by the Company and authenticated,
executed on behalf of the Holders and delivered by the Purchase Contract Agent
in accordance with the Purchase Contract Agreement in exchange for Outstanding
Security Certificates.
Section 11. Miscellaneous.
-------------
Section 11.1 No Waiver.
----------------------
No failure on the part of the Collateral Agent or any of its agents to
exercise, and no course of dealing with respect to, and no delay in exercising,
any right, power or remedy hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise by the Collateral Agent or any of its
agents of any right, power or remedy hereunder preclude any other or further
exercise thereof or the exercise of any other right, power or remedy. The
remedies herein are cumulative and are not exclusive of any remedies provided by
law.
Section 11.2 Governing Law.
--------------------------
This agreement shall be governed by, and construed in accordance with,
the laws of the State of New York.
The Company, the Collateral Agent, the Securities Intermediary and the
Holders from time to time of the Securities, acting through the Purchase
Contract Agent as their attorney-in-fact, hereby submit to the nonexclusive
jurisdiction of the United States District Court for the Southern District of
New York and of any New York state court sitting in New York City for the
purposes of all legal proceedings arising out of or relating to this Agreement
or the transactions contemplated hereby. The Company, the Collateral Agent, the
Securities Intermediary and the Holders from time to time of the Securities,
acting through the Purchase Contract Agent as their attorney-in-fact,
irrevocably waive, to the fullest extent permitted by applicable law, any
objection which they may now or hereafter have to the laying of the venue of any
such proceeding brought in such a court and any claim that any such proceeding
brought in such a court has been brought in an inconvenient forum.
Section 11.3 Notices.
--------------------
All notices, requests, consents and other communications provided for
herein (including, without limitation, any modifications of, or waivers or
consents under, this Agreement) shall be given or made in writing (including,
without limitation, by telecopy)
24
delivered to the intended recipient at the "Address for Notices" specified below
its name on the signature pages hereof or, as to any party, at such other
address as shall be designated by such party in a notice to the other parties.
Except as otherwise provided in this Agreement, all such communications shall be
deemed to have been duly given when transmitted by telecopier or personally
delivered or, in the case of a mailed notice, upon receipt, in each case given
or addressed as aforesaid.
Section 11.4 Successors and Assigns.
-----------------------------------
This Agreement shall be binding upon and inure to the benefit of the
respective successors and assigns of the Company, the Collateral Agent, the
Securities Intermediary and the Purchase Contract Agent, and the Holders from
time to time of the Securities, by their acceptance of the same, shall be deemed
to have agreed to be bound by the provisions hereof and to have ratified the
agreements of, and the grant of the Pledge hereunder by, the Purchase Contract
Agent.
Section 11.5 Counterparts.
-------------------------
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one and the same instrument, and any of
the parties hereto may execute this Agreement by signing any such counterpart.
Section 11.6 Severability.
-------------------------
If any provision hereof is invalid and unenforceable in any
jurisdiction, then, to the fullest extent permitted by law, (i) the other
provisions hereof shall remain in full force and effect in such jurisdiction and
shall be liberally construed in order to carry out the intentions of the parties
hereto as nearly as may be possible and (ii) the invalidity or unenforceability
of any provision hereof in any jurisdiction shall not affect the validity or
enforceability of such provision in any other jurisdiction.
Section 11.7 Expenses, etc.
--------------------------
The Company agrees to reimburse the Collateral Agent and the
Securities Intermediary for:
(1) all reasonable costs and expenses of the Collateral Agent and the
Securities Intermediary (including, without limitation, the reasonable fees
and expenses of counsel to the Collateral Agent and the Securities
Intermediary), in connection with (i) the negotiation, preparation,
execution and delivery or performance of this Agreement and (ii) any
modification, supplement or waiver of any of the terms of this Agreement;
(2) all reasonable costs and expenses of the Collateral Agent and the
Securities Intermediary (including, without limitation, reasonable fees and
expenses of counsel) in connection with (i) any enforcement or proceedings
resulting or incurred in connection with causing any Holder of Securities
to satisfy its obligations under the Purchase Contracts forming a part of
the Securities and (ii) the enforcement of this Section 11.7; and
25
(3) all transfer, stamp, documentary or other similar taxes,
assessments or charges levied by any governmental or revenue authority in
respect of this Agreement or any other document referred to herein and all
costs, expenses, taxes, assessments and other charges incurred in
connection with any filing, registration, recording or perfection of any
security interest contemplated hereby.
Section 11.8 Security Interest Absolute.
---------------------------------------
All rights of the Collateral Agent and security interests hereunder,
and all obligations of the Holders from time to time hereunder, shall be
absolute and unconditional irrespective of:
(1) any lack of validity or enforceability of any provision of the
Purchase Contracts or the Securities or any other agreement or instrument
relating thereto;
(2) any change in the time, manner or place of payment of, or any
other term of, or any increase in the amount of, all or any of the
obligations of Holders of the Securities under the related Purchase
Contracts, or any other amendment or waiver of any term of, or any consent
to any departure from any requirement of, the Purchase Contract Agreement
or any Purchase Contract or any other agreement or instrument relating
thereto; or
(3) any other circumstance which might otherwise constitute a defense
available to, or discharge of, a borrower, a guarantor or a pledgor.
26
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
DOMINION RESOURCES, INC. THE CHASE MANHATTAN BANK, individually
but solely as Purchase Contract Agent
and attorney-in-fact of the Holders from
time to time of the Securities
By:________________________________ By:_____________________________
Name: Name:
Title: Title:
Address for Notices: Address for Notices:
000 Xxxxxxxx Xxxxxx 000 Xxxx 00xx Xxxxxx, 00xx Xxxxx,
Xxxxxxxx, Xxxxxxxx 00000 New York, New York001
Attention: . Attention: Capital Marketsuciary Services
Telecopy: . Telecopy: (000) 000-0000/8160
BANK ONE TRUST COMPANY, N.A., BANK ONE TRUST COMPANY, N.A
as Collateral Agent as Securities Intermediary
By:____________________________ By:_____________________________
Name: Name:
Title: Title:
Address for Notices: Address for Notices:
000 Xxxx 00xx Xxxxxx 000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Attention: Corporate Trust
Administration Administration
Telecopy: (000) 000-0000 Telecopy: (000) 000-0000
27
EXHIBIT A
INSTRUCTION
FROM PURCHASE CONTRACT AGENT
TO COLLATERAL AGENT
(Establishment of Treasury PIES)
BANK ONE TRUST COMPANY, N.A., as Collateral Agent
000 Xxxx 00/xx/ Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
Telecopy: (000) 000-0000
Re: PIES of Dominion Resources, Inc.
(the "Company")
Please refer to the Pledge Agreement dated as of October 12, 2000 (the
"Pledge Agreement"), among the Company, you, as Collateral Agent, Bank One Trust
Company, N.A., as Securities Intermediary, and the undersigned, as Purchase
Contract Agent and as attorney-in-fact for the holders of PIES from time to
time. Capitalized terms used herein but not defined shall have the meaning set
forth in the Pledge Agreement.
We hereby notify you in accordance with Section 5.2 of the Pledge
Agreement that the holder of securities named below (the "Holder") has elected
to substitute $__________ Value of Treasury Securities in exchange for an equal
Value of Pledged Senior Notes and has delivered to the undersigned a notice
stating that the Holder has Transferred such Treasury Securities to the
Securities Intermediary, for credit to the Collateral Account.
We hereby request that you instruct the Securities Intermediary, upon
confirmation that such Treasury Securities have been credited to the Collateral
Account, to release to the undersigned an equal Value of Pledged Senior Notes in
accordance with Section 5.2 of the Pledge Agreement.
THE CHASE MANHATTAN BANK,
as Puchase Contract Agent
Date: _______________ By:______________________________
Name:
Title:
Please print name and address of Holder electing to substitute Treasury
Securities or security entitlements thereto for the Pledged Senior Notes:
_______________________ _______________________
Name Social Security or othe
Taxpayer Identification
if any
_______________________
Address
_______________________
_______________________
A-2
EXHIBIT B
INSTRUCTION
FROM COLLATERAL AGENT
TO SECURITIES INTERMEDIARY
(Establishment of Treasury PIES)
BANK ONE TRUST COMPANY, N.A., as Securities Intermediary
000 Xxxx 00/xx/ Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
Telecopy: (000) 000-0000
Re: PIES of Dominion Resources, Inc.
(the "Company")
Securities Account No. [________] entitled "BANK ONE
TRUST COMPANY, N.A., as Collateral Agent, Securities
Account (Dominion Resources, Inc.)" (the "Collateral
Account")
Please refer to the Pledge Agreement, dated as of October 12, 2000 (the
"Pledge Agreement"), among the Company, you, as Securities Intermediary, The
Chase Manhattan Bank, as Purchase Contract Agent and as attorney-in-fact for the
holders of PIES from time to time, and the undersigned, as Collateral Agent.
Capitalized terms used herein but not defined shall have the meanings set forth
in the Pledge Agreement.
When you have confirmed that $__________ Value of Treasury Securities has
been credited to the Collateral Account by or for the benefit of _________, as
Holder of PIES (the "Holder"), you are hereby instructed to release from the
Collateral Account an equal Value of Senior Notes by Transfer to the Purchase
Contract Agent.
BANK ONE TRUST COMPANY, N.A., as
Collateral Agent
Date: _______________ By:_______________________
Name:
Title:
Please print name and address of Holder:
____________________________ _____________________________
Name Social Security or other
Taxpayer Identification Number,
if any
____________________________
Address
____________________________
____________________________
B-2
EXHIBIT C
INSTRUCTION
FROM PURCHASE CONTRACT AGENT
TO COLLATERAL AGENT
(Reestablishment of Corporate PIES)
BANK ONE TRUST COMPANY, N.A., as Collateral Agent
000 Xxxx 00/xx/ Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
Telecopy: (000) 000-0000
Re: PIES of Dominion Resources, Inc.
(the "Company")
Please refer to the Pledge Agreement, dated as of October 12, 2000 (the
"Pledge Agreement"), among the Company, you, as Collateral Agent, Bank One Trust
Company, N.A., as Securities Intermediary, and the undersigned, as Purchase
Contract Agent and as attorney-in-fact for the holders of PIES from time to
time. Capitalized terms used herein but not defined shall have the meanings set
forth in the Pledge Agreement.
We hereby notify you in accordance with Section 5.3(a) of the Pledge
Agreement that the holder of securities listed below (the "Holder") has elected
to substitute $__________ Value of Senior Notes or security entitlements thereto
in exchange for $__________ Value of Pledged Treasury Securities and has
delivered to the undersigned a notice stating that the Holder has Transferred
such Senior Notes or security entitlements thereto to the Securities
Intermediary, for credit to the Collateral Account.
We hereby request that you instruct the Securities Intermediary, upon
confirmation that such Senior Notes or security entitlements thereto have been
credited to the Collateral Account, to release to the undersigned $__________
Value of Treasury Securities or security entitlements thereto related to _____
Treasury PIES of such Holder in accordance with Section 5.3(a) of the Pledge
Agreement.
THE CHASE MANHATTAN BANK,
as Purchase Contract Agent
Date: _______________ By:_________________________
Name:
Title:
Please print name and address of Holder electing to substitute Pledged Senior
Notes or security entitlements thereto for Pledged Treasury Securities:
_________________________ ____________________________
Name Social Security or other
Taxpayer Identification Number,
if any
_________________________
Address
_________________________
_________________________
C-2
EXHIBIT D
INSTRUCTION
FROM COLLATERAL AGENT
TO SECURITIES INTERMEDIARY
(Reestablishment of Corporate PIES)
BANK ONE TRUST COMPANY, N.A., as Securities Intermediary
000 Xxxx 00/xx/ Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
Telecopy: (000) 000-0000
Re: PIES of Dominion Resources, Inc.
(the "Company")
Securities Account No. _________ entitled "BANK ONE TRUST
COMPANY, N.A., as Collateral Agent, Securities Account
(Dominion Resources, Inc.) (the "Collateral Account")
Please refer to the Pledge Agreement, dated as of October 12, 2000 (the
"Pledge Agreement"), among the Company, you, as Securities Intermediary, The
Chase Manhattan Bank, as Purchase Contract Agent and as attorney-in-fact for the
holders of PIES from time to time, and the undersigned, as Collateral Agent.
Capitalized terms used herein but not defined shall have the meanings set forth
in the Pledge Agreement.
When you have confirmed that $_________ Value of Senior Notes or security
entitlements thereto has been credited to the Collateral Account by or for the
benefit of _________, as Holder of PIES (the "Holder"), you are hereby
instructed to release from the Collateral Account $__________ Value of Treasury
Securities or security entitlements thereto by Transfer to the Purchase Contract
Agent.
BANK ONE TRUST COMPANY, N.A., as
Collateral Agent
Date: _______________ By:____________________________
Name:
Title:
Please print name and address of Holder:
________________________ __________________________
Name Social Security or other
Taxpayer Identification Number,
if any
________________________
Address
________________________
________________________
D-2
EXHIBIT E
NOTICE OF CASH SETTLEMENT
FROM SECURITIES INTERMEDIARY
TO PURCHASE CONTRACT AGENT
(Cash Settlement Amounts)
The Chase Manhattan Bank, as Purchase Contract Agent
000 Xxxx 00/xx/ Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000/8160
Attention: Capital Markets Fiduciary Services
Re: PIES of Dominion Resources, Inc.
(the "Company")
Please refer to the Pledge Agreement, dated as of October 12, 2000 (the
"Pledge Agreement"), among you, the Company, Bank One Trust Company, N.A., as
Collateral Agent and the undersigned, as Securities Intermediary. Unless
otherwise defined herein, terms defined in the Pledge Agreement are used herein
as defined therein
In accordance with Section [5.5(d)] [5.5(e)] of the Pledge Agreement, we
hereby notify you that as of 11:00 a.m., [on the fifth Business Day immediately
preceding the Purchase Contract Settlement Date] [on the Business Day
immediately preceding the Purchase Contract Settlement Date], we have received
[$_____ in immediately available funds paid in an aggregate amount equal to the
Purchase Price to the Company on the Purchase Contract Settlement Date with
respect to __________ Corporate PIES] [$_________ in immediately available funds
paid in an aggregate amount equal to the Purchase Price to the Company on the
Purchase Contract Settlement Date with respect to ______ Treasury PIES.]
BANK ONE TRUST COMPANY, N.A.,
as Securities Intermediary
Date: _______________ By:______________________________
Name:
Title:
