4(xvii)
FORM OF
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT dated as of _______, 200_ between DOMINION RESOURCES, INC., a
Virginia corporation ("Dominion Resources"), and DOMINION RESOURCES CAPITAL
TRUST __, a Delaware business trust (the "Trust").
WHEREAS, the Trust intends to issue its ___% Common Securities (the "Common
Securities") to, and purchase ___% Junior Subordinated Debentures (the
"Debentures") from, Dominion Resources, and to issue and sell its ___% Trust
Preferred Securities (the "Trust Preferred Securities") with such powers,
preferences and special rights and restrictions as are set forth in the Amended
and Restated Trust Agreement of the Trust dated as of ________, 2000, as the
same may be amended from time to time (the "Trust Agreement");
WHEREAS, Dominion Resources will directly or indirectly own all of the
Common Securities of the Trust and will issue the Debentures;
NOW, THEREFORE, in consideration of the purchase by each holder of the
Trust Preferred Securities, which purchase Dominion Resources hereby agrees
shall benefit Dominion Resources and which purchase Dominion Resources
acknowledges will be made in reliance upon the execution and delivery of this
Agreement, Dominion Resources and the Trust hereby agree as follows:
ARTICLE I
GUARANTEE BY DOMINION RESOURCES
1.1 Guarantee by Dominion Resources. Subject to the terms and conditions
hereof, Dominion Resources hereby irrevocably and unconditionally guarantees to
each person or entity to whom the Trust is now or hereafter becomes indebted or
liable (the "Beneficiaries") the full payment, when and as due, of any and all
Obligations (as hereinafter defined) to such Beneficiaries. As used herein,
"Obligations" means any costs, expenses or liabilities of the Trust, other than
obligations of the Trust to pay to holders of any Trust Preferred Securities the
amounts due such holders pursuant to the terms of the Trust Preferred
Securities. This Agreement is intended to be for the benefit of, and to be
enforceable by, all such Beneficiaries, whether or not such Beneficiaries have
received notice hereof.
1.2 Terms of Agreement. This Agreement shall terminate and be of no
further force and effect upon the later of (a) the date on which full payment
has been made of all amounts payable to all holders of all the Trust Preferred
Securities (whether upon redemption, liquidation, exchange or otherwise) and (b)
the date on which there are no Beneficiaries remaining; provided, however, that
this Agreement shall continue to be effective or shall be reinstated, as the
case may be, if at any time any holder of Trust
Preferred Securities or any Beneficiary must restore payment of any sums paid
under the Trust Preferred Securities, under any Obligation, under the Trust
Preferred Securities Guarantee Agreement dated the date hereof by Dominion
Resources and The Chase Manhattan Bank, as guarantee trustee, or under this
Agreement for any reason whatsoever. This Agreement is continuing, irrevocable,
unconditional and absolute.
1.3 Waiver of Notice. Dominion Resources hereby waives notice of
acceptance of this Agreement and of any Obligation to which it applies or may
apply, and Dominion Resources hereby waives presentment, demand for payment,
protest, notice of nonpayment, notice of dishonor, notice of redemption and all
other notices and demands.
1.4 No Impairment. The obligations, covenants, agreements and duties of
Dominion Resources under this Agreement shall in no way be affected or impaired
by reason of the happening from time to time of any of the following:
(a) the extension of time for the payment by the Trust of all or any
portion of the Obligations or for the performance of any other obligation under,
arising out of, or in connection with, the Obligations;
(b) any failure, omission, delay or lack of diligence on the part of
the Beneficiaries to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Beneficiaries with respect to the Obligations or any
action on the part of the Trust granting indulgence or extension of any kind; or
(c) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Trust or any of the assets of the
Trust.
There shall be no obligation of the Beneficiaries to give notice to, or obtain
the consent of, Dominion Resources with respect to the happening of any of the
foregoing.
1.5 Enforcement. A Beneficiary may enforce this Agreement directly against
Dominion Resources, and Dominion Resources waives any right or remedy to require
that any action be brought against the Trust or any other person or entity
before proceeding against Dominion Resources.
1.6 Subrogation. Dominion Resources shall be subrogated to all rights (if
any) of the Trust in respect of any amounts paid to the Beneficiaries by
Dominion Resources under this Agreement; provided, however, that Dominion
Resources shall not (except to the extent required by mandatory provisions of
law) be entitled to enforce or exercise any rights which it may acquire by way
of subrogation or any indemnity, reimbursement or other agreement, in all cases
as a result of payment under this Agreement, if, at the time of any such
payment, any amounts are due and unpaid under this Agreement.
ARTICLE II
BINDING EFFECT
2.1 Binding Effect. All guarantees and agreements contained in this
Agreement shall bind the successors, assigns, receivers, trustees and
representatives of Dominion Resources and shall inure to the benefit of the
Beneficiaries.
2.2 Amendment. So long as there remains any Beneficiary or any Trust
Preferred Securities of any series are outstanding, this Agreement shall not be
modified or amended in any manner adverse to such Beneficiary or to the holders
of the Trust Preferred Securities.
2.3 Notices. Any notice, request or other communication required or
permitted to be given hereunder shall be given in writing by delivering the same
by personal delivery, by facsimile transmission or by first-class mail,
addressed as follows (and if so given, shall be deemed given when so delivered,
upon receipt of confirmation if by facsimile, or three days after mailed if by
first-class mail):
If to the Trust to:
Dominion Resources Capital Trust __
c/o Dominion Resources, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Treasurer
[Telecopy No.: (804) 819-
with a copy to:
Dominion Resources, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Treasurer
[Telecopy No.: (804) 819-
2.4 Governing Law. This Agreement shall be governed by and construed and
interpreted in accordance with the laws of the Commonwealth of Virginia (without
regard to conflict of laws principles).
THIS AGREEMENT is executed as of the day and year first above written.
DOMINION RESOURCES, INC.
By: ___________________________________
Name:
Title:
DOMINION RESOURCES CAPITAL TRUST
By: ___________________________________
as Administrative Trustee
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT dated as of _______, 2000 between DOMINION RESOURCES, INC., a
Virginia corporation ("Dominion Resources"), and DOMINION RESOURCES CAPITAL
TRUST III, a Delaware business trust (the "Trust").
WHEREAS, the Trust intends to issue its ___% Common Securities (the "Common
Securities") to, and purchase ___% Junior Subordinated Debentures (the
"Debentures") from, Dominion Resources, and to issue and sell its ___% Trust
Preferred Securities (the "Trust Preferred Securities") with such powers,
preferences and special rights and restrictions as are set forth in the Amended
and Restated Trust Agreement of the Trust dated as of ________, 2000, as the
same may be amended from time to time (the "Trust Agreement");
WHEREAS, Dominion Resources will directly or indirectly own all of the
Common Securities of the Trust and will issue the Debentures;
NOW, THEREFORE, in consideration of the purchase by each holder of the
Trust Preferred Securities, which purchase Dominion Resources hereby agrees
shall benefit Dominion Resources and which purchase Dominion Resources
acknowledges will be made in reliance upon the execution and delivery of this
Agreement, Dominion Resources and the Trust hereby agree as follows:
ARTICLE I
GUARANTEE BY DOMINION RESOURCES
1.1 Guarantee by Dominion Resources. Subject to the terms and conditions
hereof, Dominion Resources hereby irrevocably and unconditionally guarantees to
each person or entity to whom the Trust is now or hereafter becomes indebted or
liable (the "Beneficiaries") the full payment, when and as due, of any and all
Obligations (as hereinafter defined) to such Beneficiaries. As used herein,
"Obligations" means any costs, expenses or liabilities of the Trust, other than
obligations of the Trust to pay to holders of any Trust Preferred Securities the
amounts due such holders pursuant to the terms of the Trust Preferred
Securities. This Agreement is intended to be for the benefit of, and to be
enforceable by, all such Beneficiaries, whether or not such Beneficiaries have
received notice hereof.
1.2 Terms of Agreement. This Agreement shall terminate and be of no
further force and effect upon the later of (a) the date on which full payment
has been made of all amounts payable to all holders of all the Trust Preferred
Securities (whether upon redemption, liquidation, exchange or otherwise) and (b)
the date on which there are no Beneficiaries remaining; provided, however, that
this Agreement shall continue to be effective or shall be reinstated, as the
case may be, if at any time any holder of Trust
Preferred Securities or any Beneficiary must restore payment of any sums paid
under the Trust Preferred Securities, under any Obligation, under the Trust
Preferred Securities Guarantee Agreement dated the date hereof by Dominion
Resources and The Chase Manhattan Bank, as guarantee trustee, or under this
Agreement for any reason whatsoever. This Agreement is continuing, irrevocable,
unconditional and absolute.
1.3 Waiver of Notice. Dominion Resources hereby waives notice of
acceptance of this Agreement and of any Obligation to which it applies or may
apply, and Dominion Resources hereby waives presentment, demand for payment,
protest, notice of nonpayment, notice of dishonor, notice of redemption and all
other notices and demands.
1.4 No Impairment. The obligations, covenants, agreements and duties of
Dominion Resources under this Agreement shall in no way be affected or impaired
by reason of the happening from time to time of any of the following:
(a) the extension of time for the payment by the Trust of all or any
portion of the Obligations or for the performance of any other obligation under,
arising out of, or in connection with, the Obligations;
(b) any failure, omission, delay or lack of diligence on the part of
the Beneficiaries to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Beneficiaries with respect to the Obligations or any
action on the part of the Trust granting indulgence or extension of any kind; or
(c) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Trust or any of the assets of the
Trust.
There shall be no obligation of the Beneficiaries to give notice to, or obtain
the consent of, Dominion Resources with respect to the happening of any of the
foregoing.
1.5 Enforcement. A Beneficiary may enforce this Agreement directly against
Dominion Resources, and Dominion Resources waives any right or remedy to require
that any action be brought against the Trust or any other person or entity
before proceeding against Dominion Resources.
1.6 Subrogation. Dominion Resources shall be subrogated to all rights (if
any) of the Trust in respect of any amounts paid to the Beneficiaries by
Dominion Resources under this Agreement; provided, however, that Dominion
Resources shall not (except to the extent required by mandatory provisions of
law) be entitled to enforce or exercise any rights which it may acquire by way
of subrogation or any indemnity, reimbursement or other agreement, in all cases
as a result of payment under this Agreement, if, at the time of any such
payment, any amounts are due and unpaid under this Agreement.
ARTICLE II
BINDING EFFECT
2.1 Binding Effect. All guarantees and agreements contained in this
Agreement shall bind the successors, assigns, receivers, trustees and
representatives of Dominion Resources and shall inure to the benefit of the
Beneficiaries.
2.2 Amendment. So long as there remains any Beneficiary or any Trust
Preferred Securities of any series are outstanding, this Agreement shall not be
modified or amended in any manner adverse to such Beneficiary or to the holders
of the Trust Preferred Securities.
2.3 Notices. Any notice, request or other communication required or
permitted to be given hereunder shall be given in writing by delivering the same
by personal delivery, by facsimile transmission or by first-class mail,
addressed as follows (and if so given, shall be deemed given when so delivered,
upon receipt of confirmation if by facsimile, or three days after mailed if by
first-class mail):
If to the Trust to:
Dominion Resources Capital Trust III
c/o Dominion Resources, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Treasurer
[Telecopy No.: (000) 000-0000]
with a copy to:
Dominion Resources, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Treasurer
[Telecopy No.: (000) 000-0000]
2.4 Governing Law. This Agreement shall be governed by and construed and
interpreted in accordance with the laws of the Commonwealth of Virginia (without
regard to conflict of laws principles).
THIS AGREEMENT is executed as of the day and year first above written.
DOMINION RESOURCES, INC.
By: ___________________________________
Name:
Title:
DOMINION RESOURCES CAPITAL TRUST III
By: ___________________________________
as Administrative Trustee
