EXHIBIT 4.6
FORM OF
CALCULATION AGENT AGREEMENT
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THIS AGREEMENT dated as of May 25, 2001 between DOMINION
RESOURCES, INC. (hereinafter called the "Issuer"), having its principal office
at 000 Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000 and THE CHASE MANHATTAN BANK, a
New York banking corporation (hereinafter sometimes called the "Calculation
Agent" which term shall, unless the context shall otherwise require, include its
successors and assigns), having its principal corporate trust office at 000 Xxxx
00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
Recitals of the Issuer
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The Issuer proposes to issue from time to time its medium-term
notes (the "Notes") under the Indenture dated as of June 1, 2000, as
supplemented and amended from time to time (the "Indenture"), among the Issuer
and The Chase Manhattan Bank, as Trustee. Capitalized terms used in this
Agreement and not otherwise defined herein are used as defined in the Indenture.
Certain of the Notes may bear interest at one of several floating rates
determined by reference to an interest rate formula (the "Floating Rate Notes")
and the Issuer desires to engage the Calculation Agent to perform certain
services in connection therewith.
NOW IT IS HEREBY AGREED THAT:
1. The Issuer hereby appoints The Chase Manhattan Bank as
Calculation Agent for the Floating Rate Notes, upon the terms and subject to the
conditions herein mentioned, and The Chase Manhattan Bank hereby accepts such
appointment. The Calculation Agent shall act as an agent of the Issuer for the
purpose of determining the interest rate or rates of the Floating Rate Notes.
2. The Issuer agrees to deliver to the Calculation Agent,
prior to the issuance of any Floating Rate Notes, copies of the proposed forms
of such Notes, including copies of all terms and conditions relating to the
determination of the interest rate thereunder. The Issuer shall not issue any
Floating Rate Note prior to the receipt of confirmation from the Calculation
Agent of its acceptance of the proposed form of such Note. The Calculation Agent
hereby acknowledges its acceptance of the proposed form of Floating Rate Note
previously delivered to it.
3. The Issuer shall notify the Calculation Agent of the
issuance of any Floating Rate Notes prior to the issuance thereof and at the
time of such issuance, shall deliver to the Calculation Agent the information
required to be provided by the Issuer for the calculation of the applicable
interest rates thereunder. The Calculation Agent shall calculate the applicable
interest rates for Floating Rate Notes in accordance with the terms of such
Notes, the Indenture and the provisions of this Agreement.
4. Promptly following the determination of each change to the
interest rate applicable to any Floating Rate Note, the Calculation Agent will
cause to be forwarded to the Issuer, the Trustee and the principal Paying Agent
information regarding the interest rate then in effect for such Floating Rate
Note.
5. The Issuer will pay such compensation as shall be agreed
upon with the Calculation Agent and the out- of-pocket expenses, including
reasonable counsel fees, incurred by the Calculation Agent in connection with
its duties hereunder, upon receipt of such invoices as the Issuer shall
reasonably require.
6. Notwithstanding any satisfaction or discharge of the Notes
or the Indenture, the Issuer will indemnify the Calculation Agent against any
losses, liabilities, costs, claims, actions or demands which it may incur or
sustain or which may be made against it in connection with its appointment or
the exercise of its powers and duties hereunder as well as the reasonable costs,
including the reasonable expenses and fees of counsel in defending any claim,
action or demand, except such as may result from the gross negligence, wilful
misconduct or bad faith of the Calculation Agent or any of its employees. Except
as provided in the preceding sentence, the Calculation Agent shall incur no
liability and shall be indemnified and held harmless by the Issuer for, or in
respect of, any actions taken or suffered to be taken in good faith by the
Calculation Agent in reliance upon (i) the written opinion or advice of counsel
or (ii) written instructions from the Issuer.
7. The Calculation Agent accepts its obligations herein set
forth upon the terms and conditions hereof, including the following, to all of
which the Issuer agrees:
(i) in acting under this Agreement and in connection with the
Notes, the Calculation Agent, acting as agent for the Issuer, does not
assume any obligation towards, or any relationship of agency or trust
for or with, any of the Holders of the Notes;
(ii) unless herein otherwise specifically provided, any order,
certificate, notice, request or communication from the Issuer made or
given under any
provisions of this Agreement shall be sufficient if signed by any
person whom the Calculation Agent reasonably believes to be a duly
authorized officer or attorney-in-fact of the Issuer;
(iii) the Calculation Agent shall be obligated to perform only
such duties as are set forth specifically herein and any duties
necessarily incidental thereto;
(iv) the Calculation Agent shall be protected and shall incur
no liability for or in respect of any action taken or omitted to be
taken or anything suffered by it in reliance upon anything contained in
a Floating Rate Note, the Indenture or any information supplied to it
by the Issuer pursuant to this Agreement, including the information to
be supplied pursuant to paragraph 3 above;
(v) the Calculation Agent, whether acting for itself or in any
other capacity, may become the owner or pledgee of Notes with the same
rights as it would have had if it were not acting hereunder as
Calculation Agent;
(vi) the Calculation Agent shall incur no liability hereunder
except for loss sustained by reason of its gross negligence, wilful
misconduct or bad faith; and
(vii) in no event shall the Calculation Agent be liable for
special, indirect or consequential loss or damage of any kind
whatsoever (including but not limited to lost profits), even if the
Calculation Agent has been advised of the likelihood of such loss or
damage and regardless of the form of action.
8. (a) The Issuer agrees to notify the Calculation Agent at least 3
Business Days prior to the issuance of any Floating Rate Note with an interest
rate to be determined by any formula that would require the Calculation Agent to
select banks or other financial institutions (the "Reference Banks") for
purposes of quoting rates. Immediately prior to seeking such quotes from such
Reference Banks, the Calculation Agent will notify the Issuer (unless, in
accordance with the Floating Rate Notes, the selection of such Reference Banks
must be made after consultation with the Issuer) and the Trustee of the names
and addresses of such Reference Banks. The Calculation Agent shall not be
responsible to the Issuer or any third party for any failure of the Reference
Banks to fulfill their duties or meet their obligations as Reference Banks or as
a result of the Calculation Agent having acted (except in the event of gross
negligence, wilful misconduct or bad faith) on any quotation or other
information given by any Reference Bank which subsequently may be found to be
incorrect.
(b) Except as provided below, the Calculation Agent may at any
time resign as Calculation Agent by giving written notice to the Issuer and the
Trustee of such intention on its part, specifying the date on which its desired
resignation shall become effective, provided that such notice shall be given not
less than 60 days prior to the said effective date unless the Issuer and the
Trustee otherwise agree in writing. Except as provided below, the Calculation
Agent may be removed by the filing with it and the Trustee of an instrument in
writing signed by the Issuer specifying such removal and the date when it shall
become effective (such effective date being at least 20 days after said filing).
Any such resignation or removal shall take effect upon:
(i) the appointment by the Issuer as hereinafter provided of
a successor Calculation Agent; and
(ii) the acceptance of such appointment by such successor
Calculation Agent;
provided, however, that in the event the Calculation Agent has given not less
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than 60 days' prior notice of its desired resignation, and during such 60 days
there has not been acceptance by a successor Calculation Agent of its appoint
ment as successor Calculation Agent, the Calculation Agent so resigning may
petition any court of competent jurisdiction for the appointment of a successor
Calculation Agent. The Issuer covenants that it shall appoint a successor
Calculation Agent as soon as practicable after receipt of any notice of
resignation hereunder. Upon its resignation or removal becoming effective, the
retiring Calculation Agent shall be entitled to the payment of its compensation
and the reimbursement of all expenses (including reasonable counsel fees)
incurred by such retiring Calculation Agent pursuant to paragraph 5 hereof to
the date such resignation or removal becomes effective.
(c) If at any time the Calculation Agent shall resign or be
removed, or shall become incapable of acting or shall be adjudged bankrupt or
insolvent, or liquidated or dissolved, or an order is made or an effective
resolution is passed to wind up the Calculation Agent, or if the Calculation
Agent shall file a voluntary petition in bankruptcy or make an assignment for
the benefit of its creditors, or shall consent to the appointment of a receiver,
administrator or other similar official of all or any substantial part of its
property, or shall admit in writing its inability to pay or meet its debts as
they mature, or if a receiver, administrator or other similar official of the
Calculation Agent or of all or any substantial part of its property shall be
appointed, or if any order of any court shall be entered approving any petition
filed by or against the Calculation Agent under the provisions of any applicable
bankruptcy or insolvency law,
or if any public officer shall take charge or control of the Calculation Agent
or its property or affairs for the purpose of rehabilitation, conservation or
liquidation, then a successor Calculation Agent shall be appointed by the Issuer
by an instrument in writing filed with the successor Calculation Agent and the
Trustee. Upon the appointment as aforesaid of a successor Calculation Agent and
acceptance by the latter of such appointment the former Calculation Agent shall
cease to be Calculation Agent hereunder.
(d) Any successor Calculation Agent appointed hereunder shall
execute and deliver to its predecessor, the Issuer and the Trustee an instrument
accepting such appointment hereunder, and thereupon such successor Calculation
Agent, without any further act, deed or conveyance, shall become vested with all
the authority, rights, powers, immunities, duties and obligations of such
predecessor with like effect as if originally named as the Calculation Agent
hereunder, and such predecessor, upon payment of its compensation, charges and
disbursements then unpaid, shall thereupon become obliged to transfer and
deliver, and such successor Calculation Agent shall be entitled to receive,
copies of any relevant records maintained by such predecessor Calculation Agent.
(e) Any corporation into which the Calculation Agent may be
merged or converted or any corporation with which the Calculation Agent may be
consolidated or any corporation resulting from any merger, conversion or
consolidation to which the Calculation Agent shall be a party shall, to the
extent permitted by applicable law, be the successor Calculation Agent under
this Agreement without the execution or filing of any paper or any further act
on the part of any of the parties hereto. Notice of any such merger, conversion
or consolidation shall forthwith be given to the Issuer and the Trustee.
(f) The provisions of paragraphs 5 and 6 hereof shall survive
any resignation or removal hereunder.
9. Any notice required to be given hereunder shall be
delivered in person against written receipt, sent by letter or telex or telecopy
or communicated by telephone (subject, in the case of communication by
telephone, to confirmation dispatched within two business days by letter, telex
or telecopy), in the case of the Issuer, to it at the address set forth in the
heading of this Agreement, Attention: Financing Manager - Public Markets; in the
case of the Calculation Agent, to it at the address set forth in the heading of
this Agreement, Attention: Institutional Trust Services; in the case of the
Trustee, to it at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Institutional Trust Services; or, in any case, to any other address of which the
party receiving notice shall have notified the party giving such notice in
writing.
10. This Agreement may be amended only by a writing duly
executed and delivered by each of the parties signing below.
11. The provisions of this Agreement shall be governed by,
and construed in accordance with, the laws of the State of New York.
12. This Agreement may be executed in
counterparts and the executed counterparts shall together constitute a single
instrument.
IN WITNESS WHEREOF, this Agreement has been executed and
delivered as of the day and year first above written.
DOMINION RESOURCES, INC.
By_______________________
Title:
THE CHASE MANHATTAN BANK
By_______________________
Title:
