EXHIBIT 4.9
________________________________________________________________________________
CAPITAL SECURITIES GUARANTEE AGREEMENT
BETWEEN
DOMINION RESOURCES, INC.
(AS GUARANTOR)
AND
THE CHASE MANHATTAN BANK
(AS TRUSTEE)
DATED AS OF
______________, 199_
________________________________________________________________________________
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
1.1 Definitions............................................. 2
ARTICLE II
TRUST INDENTURE ACT
2.1 Trust Indenture Act; Application........................ 5
2.2 List of Holders......................................... 5
2.3 Reports by the Guarantee Trustee........................ 6
2.4 Periodic Reports to the Guarantee Trustee............... 6
2.5 Evidence of Compliance with Conditions Precedent........ 6
2.6 Events of Default; Waiver............................... 6
2.7 Event of Default; Notice................................ 7
2.8 Conflicting Interests................................... 7
ARTICLE III
POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
3.1 Powers and Duties of the Guarantee Trustee.............. 7
3.2 Certain Rights of Guarantee Trustee..................... 9
3.3 Compensation............................................ 12
3.4 Indemnity............................................... 12
ARTICLE IV
GUARANTEE TRUSTEE
4.1 Guarantee Trustee: Eligibility.......................... 12
4.2 Appointment, Removal and Resignation of the
Guarantee Trustee....................................... 13
ARTICLE V
GUARANTEE
5.1 Guarantee............................................... 14
5.2 Waiver of Notice and Demand............................. 14
5.3 Obligations Not Affected................................ 14
5.4 Rights of Holders....................................... 15
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5.5 Guarantee of Payment................................ 16
5.6 Subrogation......................................... 16
5.7 Independent Obligations............................. 16
5.8 Merger or Consolidation of Guarantor................ 16
ARTICLE VI
SUBORDINATION
6.1 Subordination....................................... 17
6.2 Pari Passu to Similar Guarantees.................... 17
ARTICLE VII
TERMINATION
7.1 Termination......................................... 18
7.2 Termination of Old Guarantee........................ 18
ARTICLE VIII
MISCELLANEOUS
8.1 Successors and Assigns.............................. 18
8.2 Amendments.......................................... 18
8.3 Notices............................................. 18
8.4 Benefit............................................. 20
8.5 Interpretation...................................... 20
8.6 Governing Law....................................... 20
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CAPITAL SECURITIES GUARANTEE AGREEMENT
THIS CAPITAL SECURITIES GUARANTEE AGREEMENT, dated as of _______________
(the "Guarantee Agreement"), is executed and delivered by DOMINION RESOURCES,
INC., a Virginia corporation (the "Guarantor"), and THE CHASE MANHATTAN BANK, a
New York banking corporation, as trustee (the "Guarantee Trustee"), for the
benefit of the Holders (as defined herein) from time to time of the Capital
Securities (as defined herein) of DOMINION RESOURCES CAPITAL TRUST I, a Delaware
statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Trust Agreement, dated as of
December 8, 1997 (the "Trust Agreement"), among the Guarantor, as Depositor, The
Chase Manhattan Bank, as Property Trustee, Chase Manhattan Bank Delaware, as
Delaware Trustee, the Administrative Trustees named therein and the holders,
from time to time, of undivided beneficial interests in the assets of the
Issuer, the Issuer issued $250,000,000 aggregate Liquidation Amount (as defined
in the Trust Agreement) of its Capital Securities, Liquidation Amount $1,000 per
Capital Security (the "Old Capital Securities") representing preferred undivided
beneficial interests in the assets of the Issuer and having the terms set forth
in the Trust Agreement;
WHEREAS, the proceeds from the issuance of the Old Capital Securities,
together with the proceeds from the issuance of the Issuer's Common Securities
(as defined in Section 1.1), were used to purchase the Debentures (as defined in
the Trust Agreement) of the Guarantor which were deposited with The Chase
Manhattan Bank, as Property Trustee, under the Trust Agreement, as trust assets;
WHEREAS, as an incentive for the Holders to purchase the Old Capital
Securities, the Guarantor irrevocably and unconditionally agreed, to the extent
set forth in that certain Capital Securities Guarantee Agreement dated as of
December 8, 1997 (the "Old Guarantee Agreement") between the Guarantor and the
Guarantee Trustee, for the benefit of the Holders of the Old Capital Securities,
to pay to the Holders of the Old Capital Securities the Guarantee Payments (as
defined therein) (the "Old Guarantee") and to make certain other payments on the
terms and conditions set forth therein;
WHEREAS, pursuant to that certain Guarantee Exchange and Registration
Rights Agreement, dated as of December 8, 1997 (the "Guarantee Exchange and
Registration Rights Agreement"), among the Guarantor, the Issuer and certain
Purchasers named therein, the Guarantor and the Issuer agreed that if the
Guarantor and the Issuer file a registration statement (the "Registration
Statement") to exchange the Old Capital Securities for a like amount of new
capital securities (the "New Capital Securities" and, together with the Old
Capital Securities, the
"Capital Securities"), then the Guarantor and the Issuer will simultaneously
include in the Registration Statement an offer to exchange the Old Guarantee for
the Guarantee (as defined herein) for the benefit of the Holders of the Capital
Securities;
WHEREAS, on ___________, 199_, the Guarantor and the Issuer filed the
Registration Statement;
WHEREAS, pursuant to the Guarantee Exchange and Registration Rights
Agreement, the Guarantor and the Issuer wish to exchange the Old Guarantee for
the Guarantee;
WHEREAS, the Guarantee will be substantially identical to the Old Guarantee
except that the Guarantee will be registered pursuant to an effective
registration statement under the Securities Act of 1933, as amended (the
"Securities Act"); and
WHEREAS, as required by the Guarantee Exchange Registration Rights
Agreement, the Guarantor desires irrevocably and unconditionally to agree, to
the extent set forth herein, to pay to the Holders of the Capital Securities the
Guarantee Payments (as defined in Section 1.1) and to make certain other
payments on the terms and conditions set forth herein;
NOW, THEREFORE, as required by the Guarantee Exchange Registration Rights
Agreement, the Guarantor executes and delivers this Capital Securities Guarantee
Agreement and pursuant to Section 5.1 hereof extends the Guarantee for the
benefit of the Holders from time to time of the Capital Securities.
ARTICLE I
DEFINITIONS
1.1 DEFINITIONS. As used in this Guarantee Agreement, the terms set forth
below shall, unless the context otherwise requires, have the following meanings.
Capitalized or otherwise defined terms used but not otherwise defined herein
shall have the meanings assigned to such terms in the Trust Agreement as in
effect on the date hereof.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person; provided, however, that an Affiliate of the
Guarantor shall not be deemed to be an Affiliate of the Issuer. For the purposes
of this definition, "control" when used with respect to any specified Person
means the power to direct the management and policies of such Person, directly
or indirectly, whether
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through the ownership of voting securities, by contract or otherwise; and the
terms "controlling" and "controlled" have meanings correlative to the foregoing.
"Board of Directors" means either the board of directors of the
Guarantor or any committee of that board duly authorized to act hereunder.
"Business Days" has the meaning set forth in the Trust Agreement.
"Capital Securities" has the meaning set forth in the preamble to this
Guarantee Agreement.
"Common Securities" means the 7.83% Common Securities (Liquidation
Amount $1,000 per Common Security) of the Issuer.
"Event of Default" means a default by the Guarantor on any of its
payment or other obligations under this Guarantee Agreement; provided, however,
that, except with respect to a default in payment of any Guarantee Payments, the
Guarantor shall have received notice of default from the Guarantee Trustee or
any Holder (with a copy to the Guarantee Trustee) and shall not have cured such
default within 60 days after receipt of such notice.
"Guarantee" has the meaning set forth in Section 5.1.
"Guarantee Payments" means the following payments or distributions,
without duplication, with respect to the Capital Securities, to the extent not
paid or made by or on behalf of the Issuer: (i) any accumulated and unpaid
Distributions (as defined in the Trust Agreement) required to be paid on the
Capital Securities, to the extent the Issuer shall have funds legally available
therefor at such time, (ii) the redemption price, including all accrued and
unpaid Distributions to but excluding the date of redemption (the "Redemption
Price") with respect to any Capital Securities called for redemption by the
Issuer, to the extent the Issuer shall have funds legally available therefor at
such time, and (iii) upon a voluntary or involuntary termination, dissolution,
winding-up or liquidation of the Issuer, unless Debentures are distributed to
the Holders in accordance with Article IX of the Trust Agreement, the lesser of
(a) the aggregate of the Liquidation Amount of $1,000 per Capital Security plus
accumulated and unpaid Distributions on the Capital Securities to but excluding
the date of payment, to the extent the Issuer shall have funds legally available
therefor at such time, and (b) the amount of assets of the Issuer remaining
available for distribution to Holders in liquidation of the Issuer (in either
case, the "Liquidation Distribution").
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"Guarantee Trustee" means The Chase Manhattan Bank, hereby appointed
as such by the Guarantor, until a Successor Guarantee Trustee has been appointed
and has accepted such appointment pursuant to the terms of this Guarantee
Agreement and thereafter means each such Successor Guarantee Trustee.
"Holder" means any holder, as registered on the books and records of
the Issuer, of any Capital Securities; provided, however, that in determining
whether the holders of the requisite percentage of Capital Securities have given
any request, notice, consent or waiver hereunder, "Holder" shall not include the
Guarantor, the Guarantee Trustee, or any Affiliate of the Guarantor or the
Guarantee Trustee.
"Indenture" means the Indenture dated as of December 1, 1997 between
the Guarantor and The Chase Manhattan Bank, as trustee, as supplemented by the
First Supplemental Indenture dated as of December 1, 1997, and as may be further
supplemented or amended from time to time.
"List of Holders" has the meaning specified in Section 2.2(a).
"Majority in Liquidation Amount of the Capital Securities" means,
except as provided by the Trust Indenture Act, a vote by the Holder(s) of more
than 50% of the Liquidation Amount of all then outstanding Capital Securities
issued by the Issuer.
"Officers' Certificate" means, with respect to the Guarantor, a
certificate signed by the Chairman of the Board, the Chief Executive Officer,
the President, or any Vice President (whether or not designated by a number or a
word or words added before or after the title Vice President), and by the
Treasurer, an Assistant Treasurer, the Controller, the Corporate Secretary or an
Assistant Corporate Secretary of such Person, and delivered to the Guarantee
Trustee. Any Officers' Certificate delivered with respect to compliance with a
condition or covenant provided for in this Guarantee Agreement (other than
pursuant to Section 2.4) shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definitions relating
thereto;
(b) a brief statement of the nature and scope of the examination
or investigation undertaken by each officer in rendering the Officers'
Certificate;
(c) a statement that each officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed
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opinion as to whether or not such covenant or condition has been complied
with; and
(d) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Person" means any individual, corporation, estate, partnership, joint
venture, association, joint stock company, limited liability company, trust,
unincorporated association, or government or any agency or political subdivision
thereof, or any other entity of whatever nature.
"Responsible Officer" means, with respect to the Guarantee Trustee,
any Senior Vice President, any Vice President, any Assistant Vice President, the
Corporate Secretary, any Assistant Corporate Secretary, the Treasurer, any
Assistant Treasurer, any Senior Trust Officer, any Trust Officer or Assistant
Trust Officer or any other officer of the corporate trust department of the
Guarantee Trustee and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of that
officer's knowledge of and familiarity with the particular subject.
"Senior Indebtedness of the Guarantor," for purposes of this Guarantee
Agreement, has the meaning set forth in Section 6.1 hereof.
"Successor Guarantee Trustee" means a successor Guarantee Trustee
possessing the qualifications to act as Guarantee Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
ARTICLE II
TRUST INDENTURE ACT
2.1 TRUST INDENTURE ACT; APPLICATION.
(a) This Guarantee Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Guarantee Agreement and
shall, to the extent applicable, be governed by such provisions.
(b) If and to the extent that any provision of this Guarantee
Agreement limits, qualifies or conflicts with the duties imposed by
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Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed duties
shall control.
2.2 LIST OF HOLDERS.
(a) The Guarantor shall furnish or cause to be furnished to the
Guarantee Trustee (i) semiannually, not more than five days after May 15 and
November 15 of each year, beginning with May 15, 1998, a list, in such form as
the Guarantee Trustee may reasonably require, of the names an addresses of the
Holders ("List of Holders") as of a date not more than 15 days prior to the
delivery thereof, and (ii) at such other times as the Guarantee Trustee may
request in writing, within 30 days after the receipt by the Guarantor of any
such request, a List of Holders as of a date not more than 15 days prior to the
time such list is furnished, in each case to the extent such information is in
the possession or control of the Guarantor and is not identical to a previously
supplied list of Holders or has not otherwise been received by the Guarantee
Trustee in its capacity as such. The Guarantee Trustee may destroy any List of
Holders previously given to it on receipt of a new List of Holders.
(b) The Guarantee Trustee shall comply with the obligations imposed
under Section 311(a), Section 311(b) and Section 312(b) of the Trust Indenture
Act as if it were subject to the Trust Indenture Act.
2.3 REPORTS BY THE GUARANTEE TRUSTEE. Not later than 60 days after
September 15 of each year, commencing September 15, 1998, the Guarantee Trustee
shall provide to the Holders such reports, dated as of such September 15, as are
required by Section 313(a) of the Trust Indenture Act, if any, in the form and
in the manner provided by Section 313 of the Trust Indenture Act. The Guarantee
Trustee shall also comply with the requirements of Section 313(d) of the Trust
Indenture Act.
2.4 PERIODIC REPORTS TO THE GUARANTEE TRUSTEE. The Guarantor shall
provide to the Guarantee Trustee and the Holders such documents, reports and
information, if any, as required by Section 314(a) of the Trust Indenture Act
and the compliance certificate required by Section 314(a)(4) of the Trust
Indenture Act, in the form, in the manner and at the times required by Section
314 of the Trust Indenture Act, such compliance certificate to be delivered
annually on or before May 1 in each year beginning in 1998.
2.5 EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT. The Guarantor shall
provide to the Guarantee Trustee such evidence of compliance with such
conditions precedent, if any, provided for in this Guarantee Agreement that
relate to any of the matters set forth in Section 314(c) of the Trust Indenture
Act, regardless of whether those provisions actually apply to this Guarantee
Agreement. Any certificate
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or opinion required to be given by an officer of the type mentioned in Section
314(c)(1) of the Trust Indenture Act may be given in the form of an Officers'
Certificate.
2.6 EVENTS OF DEFAULT; WAIVER. The Holders of a Majority in Liquidation
Amount of the Capital Securities may, by vote, on behalf of the Holders, waive
any past Event of Default and its consequences. Upon such waiver, any such
Event of Default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this
Guarantee Agreement, but no such waiver shall extend to any subsequent or other
default or Event of Default or impair any right consequent thereto.
2.7 EVENT OF DEFAULT; NOTICE.
(a) The Guarantee Trustee shall, within 10 Business Days after the
occurrence of any Event of Default actually known to a Responsible Officer of
the Guarantee Trustee, transmit by mail, first-class postage prepaid, to the
Holders, notices of all Events of Default known to the Guarantee Trustee, unless
such defaults have been cured or waived before the giving of such notice,
provided that, except in the case of a default in the payment of a Guarantee
Payment, the Guarantee Trustee shall be protected in withholding such notice if
and so long as the Board of Directors, the executive committee or a trust
committee of directors and/or Responsible Officers of the Guarantee Trustee in
good faith determines that the withholding of such notice is in the interests of
the Holders.
(b) The Guarantee Trustee shall not be deemed to have knowledge of any
Event of Default unless the Guarantee Trustee shall have received written notice
from the Guarantor or a Holder or a Responsible Officer charged with the
administration of this Guarantee Agreement shall have obtained written notice
from the Guarantor or a Holder of such Event of Default.
2.8 CONFLICTING INTERESTS. The Trust Agreement shall be deemed to be
specifically described in this Guarantee Agreement for the purposes of clause
(i) of the first proviso contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
3.1 POWERS AND DUTIES OF THE GUARANTEE TRUSTEE.
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(a) This Guarantee Agreement shall be held by the Guarantee Trustee
for the benefit of the Holders, and the Guarantee Trustee shall not transfer
this Guarantee Agreement to any Person except to a Holder exercising his or her
rights pursuant to Section 5.4(iv) or to a Successor Guarantee Trustee on
acceptance by such Successor Guarantee Trustee of its appointment to act as
Successor Guarantee Trustee. The right, title and interest of the Guarantee
Trustee shall automatically vest in any Successor Guarantee Trustee, upon
acceptance by such Successor Guarantee Trustee of its appointment hereunder, and
such vesting in the Successor Guarantee Trustee and cessation of right, title
and interest with respect to the Guarantee Trustee shall be effective whether or
not conveyancing documents have been executed and delivered pursuant to the
appointment of such Successor Guarantee Trustee.
(b) If an Event of Default actually known to a Responsible Officer of
the Guarantee Trustee has occurred and is continuing, the Guarantee Trustee
shall enforce this Guarantee Agreement for the benefit of the Holders, which
actions may include, without limitation (but subject to Section 5.4 hereof), (a)
recovering judgment, in its own name and as trustee of an express trust, against
the Guarantor for the whole amount of any Guarantee Payments remaining unpaid
and (b) filing such proofs of claim and other papers or documents as may be
necessary or advisable in order to have its claims and those of the Holders of
the Capital Securities allowed in any judicial proceedings relative to the
Guarantor, its creditors or its property.
(c) The Guarantee Trustee, before the occurrence of any Event of
Default and after the curing or waiving of all Events of Default that may have
occurred, shall undertake to perform only such duties as are specifically set
forth in this Guarantee Agreement, and no implied covenants shall be read into
this Guarantee Agreement against the Guarantee Trustee. In case an Event of
Default has occurred (that has not been cured or waived pursuant to Section
2.6), the Guarantee Trustee shall exercise such of the rights and powers vested
in it by this Guarantee Agreement, and use the same degree of care and skill in
its exercise thereof, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(d) No provision of this Guarantee Agreement shall be construed to
relieve the Guarantee Trustee from liability for its own negligent action, its
own negligent failure to act or its own willful misconduct, except that:
(i) prior to the occurrence of any Event of Default and after the
curing or waiving of all such Events of Default that may have occurred:
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(A) the duties and obligations of the Guarantee Trustee shall
be determined solely by the express provisions of this Guarantee
Agreement, and the Guarantee Trustee shall not be liable except for
the performance of such duties and obligations as are specifically set
forth in this Guarantee Agreement; and
(B) in the absence of bad faith on the part of the Guarantee
Trustee, the Guarantee Trustee may conclusively rely, as to the truth
of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Guarantee
Trustee and conforming to the requirements of this Guarantee
Agreement; but in the case of any such certificates or opinions that
by any provision hereof or of the Trust Indenture Act (were it
applicable hereto) are specifically required to be furnished to the
Guarantee Trustee, the Guarantee Trustee shall be under a duty to
examine the same to determine whether or not they conform to the
requirements of this Guarantee Agreement;
(ii) the Guarantee Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Guarantee
Trustee, unless it shall be proved that the Guarantee Trustee was negligent
in ascertaining the pertinent facts upon which such judgment was made;
(iii) the Guarantee Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in accordance
with the direction of the Holders of not less than a Majority in
Liquidation Amount of the Capital Securities relating to the time, method
and place of conducting any proceeding for any remedy available to the
Guarantee Trustee, or exercising any trust or power conferred upon the
Guarantee Trustee under this Guarantee Agreement; and
(iv) no provision of this Guarantee Agreement shall require
the Guarantee Trustee to expend or risk its own funds or otherwise incur
financial liability in the performance of any of its duties hereunder, or
in the exercise of any of its rights or powers, if the Guarantee Trustee
shall have reasonable grounds for believing that the repayment of such
funds or adequate indemnity against such risk or liability is
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not reasonably assured to it under the terms of this Guarantee Agreement.
3.2 CERTAIN RIGHTS OF GUARANTEE TRUSTEE.
(a) Subject to the provisions of Section 3.1:
(i) The Guarantee Trustee may rely and shall be fully
protected in acting or refraining from acting in good faith upon any
resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, appraisal, bond, debenture, note, other
evidence of indebtedness or other paper or document reasonably believed by
it to be genuine and to have been signed, sent or presented by the proper
party or parties.
(ii) Any direction or act of the Guarantor contemplated by this
Guarantee Agreement shall be sufficiently evidenced by an Officers'
Certificate unless otherwise prescribed herein.
(iii) Whenever, in the administration of this Guarantee
Agreement, the Guarantee Trustee shall deem it desirable that a matter be
proved or established before taking, suffering or omitting to take any
action hereunder, the Guarantee Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith on its part,
request and rely upon an Officers' Certificate which, upon receipt of such
request from the Guarantee Trustee, shall be promptly delivered by the
Guarantor.
(iv) The Guarantee Trustee may consult with legal counsel of
its own selection, and the advice or opinion of such legal counsel with
respect to legal matters shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted to be taken
by it hereunder in good faith and in reliance thereon and in accordance
with such advice or opinion. Such legal counsel may be legal counsel to the
Guarantor or any of its Affiliates and may be one of its employees. The
Guarantee Trustee shall have the right at any time to seek instructions
concerning the administration of this Guarantee Agreement from any court of
competent jurisdiction.
(v) The Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Guarantee
Agreement at the request or direction of
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any Holder, unless such Holder shall have offered to the Guarantee Trustee
such adequate security or indemnity against the costs, expenses (including
attorneys' fees and expenses) and liabilities that might be incurred by it
in complying with such request or direction, including such reasonable
advances as may be requested by the Guarantee Trustee; provided that
nothing contained in this Section 3.2(a)(v) shall be taken to relieve the
Guarantee Trustee, upon the occurrence of an Event of Default, of its
obligation to exercise the rights and powers vested in it by this Guarantee
Agreement.
(vi) The Guarantee Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, appraisal, bond, debenture, note, other evidence
of indebtedness or other paper or document, but the Guarantee Trustee, in
its discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit.
(vii) The Guarantee Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through its agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed by it hereunder; provided, however, that the Guarantee Trustee
shall be responsible for its own negligence with respect to the selection
of any such agent or attorney appointed by it hereunder.
(viii) Whenever in the administration of this Guarantee
Agreement the Guarantee Trustee shall deem it desirable to receive
instructions with respect to enforcing any remedy or right or taking any
other action hereunder, the Guarantee Trustee (A) may request instructions
from the Holders, (B) may refrain from enforcing such remedy or right or
taking such other action until such instructions are received, and (C)
shall be protected in acting in accordance with such instructions.
(ix) Any action take by the Guarantee Trustee or its agents
hereunder shall bind the Holders, and the signature of the Guarantee
Trustee or its agents alone shall be sufficient and effective to perform
any such action. No third party shall be required to inquire as to the
authority of the Guarantee Trustee to so act or as to its compliance with
any of the terms and provisions of this Guarantee Agreement, both
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of which shall be conclusively evidenced by the Guarantee Trustee or its
agent taking such action.
(x) The Guarantee Trustee shall not be liable for any action
taken, suffered, or omitted to be taken by it in good faith, without
negligence, and reasonably believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Guarantee Agreement.
(xi) Except as otherwise expressly provided by this Guarantee
Agreement, the Guarantee Trustee shall not be under any obligation to take
any action that is discretionary hereunder.
(b) No provision of this Guarantee Agreement shall be deemed to impose
any duty or obligation on the Guarantee Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it, in any
jurisdiction in which it shall be illegal, or in which the Guarantee Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts, or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Guarantee Trustee
shall be construed to be a duty to act in accordance with such power and
authority.
3.3 COMPENSATION. The Guarantor agrees to pay to the Guarantee Trustee
from time to time reasonable compensation for all services rendered by it
hereunder (which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust) and to reimburse
the Guarantee Trustee upon request for all reasonable expenses, disbursements
and advances incurred or made by the Guarantee Trustee in accordance with any
provision of this Guarantee Agreement (including the reasonable compensation and
the expenses and disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its negligence or bad
faith.
3.4 INDEMNITY. The Guarantor agrees to indemnify the Guarantee Trustee
for, and to hold it harmless against, any and all loss, liability, damage, claim
or expense incurred without negligence or bad faith on the part of the Guarantee
Trustee, arising out of or in connection with the acceptance or administration
of this Guarantee Agreement, including the costs and expenses of defending
itself against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder. The Guarantee Trustee
will not claim or exact any lien or charge on any Guarantee Payments as a result
of any amount due to it under this Guarantee Agreement.
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ARTICLE IV
GUARANTEE TRUSTEE
4.1 GUARANTEE TRUSTEE: ELIGIBILITY.
(a) There shall at all times be a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a Person that is eligible pursuant to the Trust Indenture
Act to act as such and has a combined capital and surplus of at least
$50,000,000, and shall be a corporation meeting the requirements of Section
310(a) of the Trust Indenture Act. If such corporation publishes reports
of condition at least annually, pursuant to law or the requirements of its
supervising or examining authority, then, for the purposes of this Section
and to the extent permitted by the Trust Indenture Act, the combined
capital and surplus of such corporation shall be deemed to be its capital
and surplus as set forth in its most recent report of condition so
published.
(b) If at any time the Guarantee Trustee shall cease to be eligible to
so act under Section 4.1(a), the Guarantee Trustee shall immediately resign in
the manner and with the effect set out in Section 4.2(c).
(c) If the Guarantee Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Guarantee Trustee and Guarantor shall in all respects comply with the provisions
of Section 310(b) of the Trust Indenture Act, subject to the penultimate
paragraph thereof.
4.2 APPOINTMENT, REMOVAL AND RESIGNATION OF THE GUARANTEE TRUSTEE.
(a) Subject to Section 4.2(b) and unless an Event of Default has
occurred and is continuing, the Guarantee Trustee may be appointed, or removed
without cause, at any time by the Guarantor.
(b) The Guarantee Trustee shall not be removed until a Successor
Guarantee Trustee has been appointed and has accepted such appointment by
written instrument executed by such Successor Guarantee Trustee and delivered to
the Guarantor.
(c) The Guarantee Trustee appointed hereunder shall hold office until
a Successor Guarantee Trustee shall have been appointed or
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until its removal or resignation. The Guarantee Trustee may resign from office
(without need for prior or subsequent accounting) by an instrument in writing
executed by the Guarantee Trustee and delivered to the Guarantor, which
resignation shall not take effect until a Successor Guarantee Trustee has been
appointed and has accepted such appointment by instrument in writing executed by
such Successor Guarantee Trustee and delivered to the Guarantor and the
resigning Guarantee Trustee. If the Guarantee Trustee shall so resign and an
Event of Default has occurred and is continuing, a Successor Guarantee Trustee
may be appointed by the Holders of a majority in Liquidation Amount of the
Capital Securities.
(d) If no Successor Guarantee Trustee shall have been appointed and
accepted appointment as provided in this Section 4.2 within 60 days after
delivery to the Guarantor of an instrument of removal or resignation, the
resigning Guarantee Trustee may petition, at the expense of the Guarantor, any
court of competent jurisdiction for appointment of a Successor Guarantee
Trustee. Such court may thereupon, after prescribing such notice, if any, as it
may deem proper, appoint a Successor Guarantee Trustee.
(e) No Guarantee Trustee shall be liable for the acts or omissions to
act of any Successor Guarantee Trustee.
(f) Upon termination of this Guarantee Agreement or removal or
resignation of the Guarantee Trustee pursuant to this Section 4.2, the Guarantor
shall pay to the Guarantee Trustee all accrued and unpaid amounts due to the
Guarantee Trustee through the date of such termination, removal or resignation.
ARTICLE V
GUARANTEE
5.1 GUARANTEE. The Guarantor irrevocably and unconditionally agrees to
pay in full to the Holders the Guarantee Payments (without duplication of
amounts theretofore paid by or on behalf of the Issuer), as and when due,
regardless of any defense, right of set-off or counterclaim which the Issuer may
have or assert other than the defense of payment (the "Guarantee"). The
Guarantor's obligation to make a Guarantee Payment may be satisfied by direct
payment of the required amounts by the Guarantor to the Holders or by causing
the Issuer to pay such amounts to the Holders.
5.2 WAIVER OF NOTICE AND DEMAND. The Guarantor hereby waives notice of
acceptance of the Guarantee and of any liability to which it applies or may
apply, presentment, demand for payment, any right to
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require a proceeding first against the Guarantee Trustee, Issuer or any other
Person before proceeding against the Guarantor, protest, notice of nonpayment,
notice of dishonor, notice of redemption and all other notices and demands.
5.3 OBLIGATIONS NOT AFFECTED. The obligations, covenants, agreements and
duties of the Guarantor under this Guarantee Agreement shall in no way be
affected or impaired by reason of the happening from time to time of any of the
following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied agreement,
covenant, term or condition relating to the Capital Securities to be performed
or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or any
portion of the Distributions (other than an extension of time for payment of
Distributions that results from the extension of any interest payment period on
the Debentures as so provided in the Indenture), Redemption Price, Liquidation
Distribution or any other sums payable under the terms of the Capital Securities
or the extension of time for the performance of any other obligation under,
arising out of, or in connection with, the Capital Securities;
(c) any failure, omission, delay or lack of diligence on the part of
the Holders or Property Trustee to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Holders or Property Trustee pursuant
to the terms of the Capital Securities, or any action on the part of the Issuer
granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting the Issuer or any of the assets of the
Issuer;
(e) any invalidity of, or defect or deficiency in, the Capital
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby
or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute
a legal or equitable discharge or defense of a guarantor, it being the intent of
this Section 5.3 that the obligations of the
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Guarantor hereunder shall be absolute and unconditional under any and all
circumstances.
There shall be no obligation of the Holders to give notice to, or obtain
the consent of, the Guarantor with respect to the happening of any of the
foregoing.
5.4 RIGHTS OF HOLDERS. The Guarantor expressly acknowledges that: (i)
this Guarantee will be deposited with the Guarantee Trustee to be held for the
benefit of the Holders; (ii) the Guarantee Trustee has the right to enforce this
Guarantee Agreement on behalf of the Holders; (iii) the Holders of a Majority in
Liquidation Amount of the Capital Securities have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Guarantee Trustee in respect of this Guarantee Agreement or exercising any trust
or power conferred upon the Guarantee Trustee under this Guarantee Agreement,
provided, however, that, subject to Section 3.1, the Guarantee Trustee shall
have the right to decline to follow any such direction if the Guarantee Trustee
being advised by counsel determines that the action so directed may not lawfully
be taken, or if the Guarantee Trustee in good faith shall, by a Responsible
Officer or Officers of the Guarantee Trustee, determine that the proceedings so
directed would be illegal or involve it in personal liability or be unduly
prejudicial to the rights of Holders not party to such direction, and provided
further that nothing in this Guarantee Agreement shall impair the right of the
Guarantee Trustee to take any action deemed proper by the Guarantee Trustee and
which is not inconsistent with such direction; and (iv) to the fullest extent
permitted by law, any Holder may institute a legal proceeding directly against
the Guarantor to enforce its rights under this Guarantee Agreement, without
first instituting a proceeding against the Guarantee Trustee, the Issuer or any
other Person. The Guarantor waives any right to require that any action be
brought first against the Issuer or any other Person or entity before proceeding
directly against the Guarantor.
5.5 GUARANTEE OF PAYMENT. This Guarantee creates a guarantee of payment
and not of collection. This Guarantee will not be discharged except by payment
of the Guarantee Payments in full (without duplication of amounts theretofore
paid by the Issuer) or upon distribution of Debentures to Holders as provided in
the Trust Agreement.
5.6 SUBROGATION. The Guarantor shall be subrogated to all (if any) rights
of the Holders against the Issuer in respect of any amounts paid to the Holders
by the Guarantor under this Guarantee Agreement and shall have the right to
waive payment by the Issuer pursuant to Section 5.1; provided, however, that the
Guarantor shall not (except to the extent required by mandatory provisions of
law) be entitled to enforce
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or exercise any rights which it may acquire by way of subrogation or any
indemnity, reimbursement or other agreement, in all cases as a result of payment
under this Guarantee Agreement, if at the time of any such payment, any amounts
are due and unpaid under this Guarantee Agreement. If any amount shall be paid
to the Guarantor in violation of the preceding sentence, the Guarantor agrees to
hold such amount in trust for the Holders and to pay over such amount to the
Holders.
5.7 INDEPENDENT OBLIGATIONS. The Guarantor acknowledges that its
obligations hereunder are independent of the obligations of the Issuer with
respect to the Capital Securities and that the Guarantor shall be liable as
principal and as debtor hereunder to make Guarantee Payments pursuant to the
terms of this Guarantee Agreement notwithstanding the occurrence of any event
referred to in subsections (a) through (g), inclusive of Section 5.3 hereof.
5.8 MERGER OR CONSOLIDATION OF GUARANTOR. The Guarantor covenants that it
will not consolidate with or merge into any other Person, or transfer, convey or
lease all or substantially all of its assets or properties to any other Person,
and no other Person shall consolidate with or merge into the Guarantor, or
transfer, convey or lease all or substantially all of its assets to the
Guarantor, unless (i) either the Guarantor shall be the continuing corporation,
or the successor shall be a Person organized and existing under the laws of the
United States of America or a State thereof or the District of Columbia and such
successor shall expressly assume the Guarantor's obligations under this
Guarantee Agreement by written instrument in form satisfactory to the Trustee,
executed and delivered to the Trustee by such successor, (ii) immediately after
such merger or consolidation, or such transfer, conveyance or lease, no Event of
Default hereunder, and no event which, after notice or lapse of time or both
would become an Event of Default, shall have happened and be continuing, (iii)
such consolidation, merger, transfer, conveyance or lease is permitted under the
Trust Agreement and Indenture and does not give rise to any breach or violation
of the Trust Agreement or Indenture, and (iv) the Guarantee Trustee shall have
received an opinion of counsel of the Guarantor or such successor Person, as the
case may be, to the effect that such consolidation, merger, transfer, conveyance
or lease and any such assumption complies with the provisions of this Section
and that all conditions precedent herein relating to such transaction have been
complied with.
ARTICLE VI
SUBORDINATION
6.1 SUBORDINATION. The obligations of the Guarantor under this Guarantee
Agreement constitute unsecured obligations of the Guarantor and rank subordinate
and junior in right of payment to all Senior
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Indebtedness of the Guarantor, which means (i) any indebtedness of the Company
for borrowed or purchased money, whether or not evidenced by bonds, debentures,
notes or other written instruments, (ii) obligations of the Guarantor for
reimbursement under letters of credit, banker's acceptances, security purchase
facilities or similar facilities issued for the account of the Guarantor, (iii)
any indebtedness or other obligations of the Company with respect to commodity
contracts (including but not limited to contracts in the spot, forward and
futures markets, options and contracts for differences), interest rate commodity
and currency swap agreements, cap, floor and collar agreements, currency spot
and forward contracts, and other similar agreements or arrangements designed to
protect against fluctuations in commodity prices, currency exchange or interest
rates, and (iv) any guarantees, endorsements (other than by endorsement of
negotiable instruments for collection in the ordinary course of business) or
other similar contingent obligations in respect of obligations of others of a
type described in (i), (ii) or (iii) above, whether or not such obligation is
classified as a liability on a balance sheet prepared in accordance with
generally accepted accounting principles, in each case listed in (i), (ii),
(iii) and (iv) above whether outstanding on the date of execution of this
Guarantee Agreement or thereafter incurred, except (a) those liabilities which
expressly by their terms are made pari passu or subordinate to the obligations
of the Guarantor under this Guarantee Agreement and (b) liabilities arising
under similar guarantee agreements as described in Section 6.2 hereof.
6.2 PARI PASSU TO SIMILAR GUARANTEES. The obligations of the Guarantor
under this Guarantee Agreement shall rank pari passu with the obligations of the
Guarantor under (i) the Debentures and (ii) any similar guarantee agreements
issued by the Guarantor on behalf of the holders of preferred securities or
capital securities issued by any DRI Trust (as defined in the Indenture).
ARTICLE VII
TERMINATION
7.1 TERMINATION. This Guarantee Agreement shall terminate and be of no
further force and effect upon the earliest of (i) full payment of the Redemption
Price of all Capital Securities, (ii) the distribution of Debentures to the
Holders in exchange for all of the Capital Securities or (iii) full payment of
the amounts payable in accordance with the Trust Agreement upon liquidation of
the Issuer. Notwithstanding the foregoing, this Guarantee Agreement will
continue to be effective or will be reinstated, as the case may be, if at any
time any Holder must restore payment of any sums paid with respect to Capital
Securities or this
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Guarantee Agreement. Sections 3.3 and 3.4 hereof shall survive the termination
of this Guarantee Agreement.
7.2 TERMINATION OF OLD GUARANTEE. The Old Guarantee Agreement is hereby
terminated and shall have no further force and effect except insofar as required
by Section 7.1 therein.
ARTICLE VIII
MISCELLANEOUS
8.1 SUCCESSORS AND ASSIGNS. All guarantees and agreements contained in
this Guarantee Agreement shall bind the successors, assigns, receivers, trustees
and representatives of the Guarantor and shall inure to the benefit of the
Holders of the Capital Securities then outstanding. Except in connection with a
consolidation, merger, transfer, conveyance or lease involving the Guarantor
that is permitted under Section 5.8 of this Guarantee Agreement, the Guarantor
shall not assign its obligations hereunder.
8.2 AMENDMENTS. Except with respect to any changes which do not adversely
affect the rights of the Holders in any material respect (in which case no
consent of the Holders will be required), this Guarantee Agreement may only be
amended with the prior approval of the Holders of not less than a Majority in
Liquidation Amount of all the outstanding Capital Securities. The provisions of
the Trust Agreement concerning meetings or consents of the Holders shall apply
to the giving of such approval.
8.3 NOTICES. Any notice, request or other communication required or
permitted to be given hereunder shall be in writing, duly signed by the party
giving such notice, and personally delivered, telecopied or mailed by first
class mail as follows:
(a) if given to the Guarantor, to the address set forth below or such
other address, facsimile number or to the attention of such other Person as the
Guarantor may give notice to the Holders and the Guarantee Trustee:
Dominion Resources, Inc.
000 X. Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Facsimile No.: 804) 775-5819
Attention: Treasurer
(b) If given to the Issuer, at the Issuer's address set forth below
or such other address as the Issuer may give notice to the Holders and the
Guarantee Trustee:
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Dominion Resources Capital Trust I
c/o Dominion Resources, Inc.
000 X. Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Treasurer
with a copy to:
The Chase Manhattan Bank
000 X. 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Corporate Trustee
Administration Department
(c) If given to the Guarantee Trustee, to the address set forth below
or such other address, facsimile number or to the attention of such other Person
as the Guarantee Trustee may give notice to the Holders:
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Corporate Trustee
Administration Department
(d) if given to any Holder, at the address set forth on the books and
records of the Issuer.
All notices hereunder shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or three days after being mailed by
first class mail, postage prepaid.
8.4 BENEFIT. This Guarantee Agreement is solely for the benefit of the
Holders and is not separately transferable from the Capital Securities.
8.5 INTERPRETATION. In this Guarantee Agreement, unless the context
otherwise requires:
(a) capitalized terms used in this Guarantee Agreement but not defined
in the preamble hereto have the respective meanings assigned to them in Section
1.1;
(b) a term defined anywhere in this Guarantee Agreement has the same
meaning throughout;
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(c) all references to "the Guarantee Agreement" or "this Guarantee
Agreement" are to this Guarantee Agreement as modified, supplemented or amended
from time to time;
(d) all references in this Guarantee Agreement to Articles and
Sections are to Articles and Sections of this Guarantee Agreement unless
otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning
when used in this Guarantee Agreement unless otherwise specified;
(f) a reference to the singular includes the plural and vice versa;
and
(g) the masculine, feminine or neuter genders used herein shall
include the masculine, feminine and neuter genders.
8.6 GOVERNING LAW. THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO THE CONFLICT OF LAW PRINCIPLES THEREOF.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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THIS GUARANTEE AGREEMENT is executed as of the day and year first above
written.
DOMINION RESOURCES, INC.
BY: ___________________________________
NAME:
TITLE:
THE CHASE MANHATTAN BANK, AS GUARANTEE
TRUSTEE
BY: ___________________________________
NAME:
TITLE:
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