EXHIBIT 4.8
CAPITAL SECURITIES GUARANTEE AGREEMENT
THIS CAPITAL SECURITIES GUARANTEE AGREEMENT, dated as of December 8, 1997
(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
Property Trustee, the 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 is issuing $250,000,000 in aggregate
Liquidation Amount (as defined in the Trust Agreement) of its Capital Securities
(as defined herein) representing preferred undivided beneficial interests in the
assets of the Issuer and having the terms set forth in the Trust Agreement;
WHEREAS, the Capital Securities will be issued by the Issuer and the
proceeds thereof, together with the proceeds from the issuance of the Issuer's
Common Securities (as defined herein), will be used to purchase the Debentures
(as defined in the Trust Agreement) of the Guarantor, which will be deposited
with The Chase Manhattan Bank, as Property Trustee under the Trust Agreement, as
trust assets; and
WHEREAS, as incentive for the Holders to purchase Capital Securities 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 herein) and to make certain other payments on the terms and
conditions set forth herein;
NOW, THEREFORE, in consideration of the purchase by each Holder of Capital
Securities, which purchase the Guarantor hereby agrees shall benefit the
Guarantor, the Guarantor executes and delivers this Guarantee Agreement 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
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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 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" means the 7.83% Capital Securities (Liquidation
Amount $1,000 per Capital Security) of the Issuer referred to in the Trust
Agreement, the certificates of which initially bear legends indicating that they
have not been registered under the Securities Act and restricting transfers
thereof to the extent required by the provisions of the Trust Agreement.
"Common Securities" means the 7.83% Common Securities (Liquidation
Amount $1,000 per Common Security) of the Issuer referred to in the Trust
Agreement.
"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.
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"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").
"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 December 1, 1997, and as may be further
supplemented or amended from time to time.
"Liquidation Amount" means the stated amount of $1,000 per Capital
Security.
"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,
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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 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 an familiarity with the particular subject.
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"Senior Indebtedness of the Guarantor," for purposes of this Guarantee
Agreement, has the meaning set forth in Section 6.1 hereof.
"Shelf Registration" and "New Guarantee Agreement" each have the
respective meanings set forth in the Guarantee Exchange and Registration Rights
Agreement by and among the Issuer, the Guarantor, and the Purchasers named
therein.
"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
2.1 Trust Indenture Act; Application. This Guarantee Agreement is not
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subject to the provisions of the Trust Indenture Act, but the Guarantee
Agreement is intended to comply with the requirements of Sections 310 to 317,
inclusive, of the Trust Indenture Act; provided, that in the event that the
Capital Securities shall be offered or sold in connection with an effective
Shelf Registration, then this Guarantee Agreement shall be qualified under and
become subject to the provisions of the Trust Indenture Act, and in such case,
the Guarantor and the Guarantee Trustee shall take such actions as may be
reasonably necessary to qualify this Guarantee Agreement under the Trust
Indenture Act, which actions, in the case of the Guarantee Trustee, shall be
limited to providing a form T-1 for filing with the SEC and consenting to any
amendments to this Guarantee Agreement in connection therewith. If and to the
extent that any provision of this Guarantee Agreement limits, qualifies or
conflicts with the duties imposed by Sections 310 to 317, inclusive, of the
Trust Indenture Act, such imposed duties shall control.
2.2 List of Holders.
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(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 and 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
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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
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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
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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
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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 or opinion 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
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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.
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2.7 Event of Default; Notice.
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(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
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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
as if such Section 310(b) applied to this Guarantee Agreement.
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 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. If and when
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required by the Guarantee Exchange and Registration Rights Agreement, the
Guarantee Trustee shall enter into the Exchange Guarantee Agreement and shall
effect the exchange contemplated therein.
(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:
(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
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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 not
reasonably assured to it under the terms of this Guarantee Agreement.
3.2 Certain Rights of Guarantee Trustee.
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(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
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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 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.
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(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 taken 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 of which
shall be conclusively evidenced by the Guarantee Trustee or its agents
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 by this Guarantee Agreement.
(xi) Except as otherwise expressly provided by this Guarantee
Agreement, the Guarantee Trustee shall not
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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
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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
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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.
ARTICLE IV
GUARANTEE TRUSTEE
4.1 Guarantee Trustee: Eligibility.
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(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
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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 combined 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, to the same extent as if such
provisions applied to this Guarantee Agreement, subject to the penultimate
paragraph thereof.
4.2 Appointment, Removal and Resignation of the Guarantee Trustee.
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(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 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.
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(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
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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 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
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acceptance of the Guarantee Agreement and of any liability to which it applies
or may apply, presentment, demand for payment, any right to 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
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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
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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 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)
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this Guarantee Agreement 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
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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 Agreement creates a guarantee of
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payment and not of collection. This Guarantee Agreement 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 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
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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
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Agreement constitute unsecured obligations of the Guarantor and rank subordinate
and junior in right of payment to all Senior 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
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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
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further force and effect upon the earliest of (i) the date on which all of the
Capital Securities cease to be outstanding following the consummation of the
Exchange Offer on which date the New Guarantee Agreement shall be in full force
and effect, (ii) full payment of the Redemption Price of all Capital Securities,
(iii) the distribution of Debentures to the Holders in exchange for all of the
Capital Securities or (iv) 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 if it has been terminated pursuant to one of such clauses (ii)
through (iv), 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 Guarantee Agreement.
Sections 3.3 and 3.4 hereof shall survive the termination of this Guarantee
Agreement.
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ARTICLE VII
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
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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.:
(000) 000-0000, 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: Dominion Resources Capital Trust I, c/o Dominion Resources,
Inc., 000 X. Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000, Facsimile No.: (804) 775-
5819, 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:
00
Xxx Xxxxx Xxxxxxxxx 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
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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;
(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
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CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO THE CONFLICT OF LAW PRINCIPLES THEREOF.
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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: /s/ Xxxxx X. Xxxxx, Xx.
-----------------------------------
Name: Xxxxx X. Xxxxx, Xx.
Title: Executive Vice President
THE CHASE MANHATTAN BANK, as Guarantee
Trustee
By: /s/ X. XxXxxxxxx
-----------------------------------
Name: X. XxXXXXXXX
Title: VICE PRESIDENT
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