EXHIBIT 4.18
DOMINION RESOURCES, INC.
MEDIUM-TERM NOTES
EXCHANGE RATE AGENT AGREEMENT
AGREEMENT made as of ____________, between DOMINION RESOURCES, INC.
(the "Corporation") and JPMORGAN CHASE BANK (in such capacity, the "Exchange
Rate Agent", which term shall, unless the context otherwise requires, include
its successors and assigns in such capacity).
WHEREAS, the Corporation proposes to issue from time to time its
medium-term notes, certain of which notes may be denominated in currencies
(including composite currencies) other than U.S. dollars (the "Specified
Currency"; references herein to "Specified Currency" in connection with a
particular Note to mean the Specified Currency applicable to such Note) (such
medium-term notes so denominated being hereinafter called the "Notes"); and
WHEREAS, the Notes will be issued pursuant to an Indenture dated as of
June 1, 2000 (the "Indenture"), between the Corporation and JPMorgan Chase Bank,
as trustee (in such capacity, the "Trustee"); and
WHEREAS, the principal of (and premium, if any) and interest on the
Notes will be paid to holders of Notes in U.S. dollars from funds paid to
JPMorgan Chase Bank, as Paying Agent (in such capacity, the "Paying Agent") in
the Specified Currency by the Corporation, except in certain circumstances with
respect to holders of Notes who elect to receive payments in the Specified
Currency; and
WHEREAS, terms defined in the Indenture and the Notes shall have the
same meanings herein unless the context otherwise requires;
NOW IT IS HEREBY AGREED that:
1. Appointment of Agent. The Corporation hereby appoints JPMorgan Chase
Bank as the Exchange Rate Agent, at its principal corporate trust office in The
City of New York, and the Exchange Rate Agent hereby accepts such appointment as
the Corporation's agent for the purpose of performing the services hereinafter
described upon the terms and subject to the conditions hereinafter mentioned.
2. Payment Dates; Notice of Note Issuance. (a) Except as may otherwise be
provided in the Notes, interest payments on the Notes will be made on the
respective interest payment dates set forth therein, and principal will be
payable on the Notes on the respective principal payment
dates set forth therein. Each such day on which interest or principal on the
Notes shall be payable as provided therein is referred to herein as a "Payment
Date."
(b) The Corporation agrees to notify the Exchange Rate Agent of the
issuance of any Notes prior to the issuance thereof and to deliver to the
Exchange Rate Agent, prior to the issuance of any Notes, copies of the proposed
forms of such Notes. The Corporation shall not issue any Note prior to the
receipt of confirmation from the Exchange Rate Agent of its acceptance of the
proposed form of such Note. The Exchange Rate Agent hereby acknowledges its
acceptance of the proposed form of Note previously delivered to it.
3. Exchange of Currencies. (a) As provided in the Notes, payments of
the principal of (and premium, if any) and interest on the Notes ("Note
Payments") are to be made in U.S. dollars, provided that any Holder of Notes may
elect to have his Note Payments made in the Specified Currency by filing a
written request with the Paying Agent as provided in the Notes. At least ten
calendar days prior to each Payment Date, the Corporation shall cause the Paying
Agent to deliver a notice to the Exchange Rate Agent specifying (i) such Payment
Date and (ii) the aggregate amount of Note Payments in the Specified Currency to
be converted into U.S. dollars on such Payment Date, on the basis of written
requests from Noteholders received by the Paying Agent as provided in the Notes
(such aggregate amount of the Specified Currency to be converted on any Payment
Date being referred to herein as the "Conversion Amount").
(b) The Exchange Rate Agent shall (subject to Section 3(g) below)
obtain a quotation from a recognized foreign exchange dealer (which may be the
Exchange Rate Agent) selected by it (the "Reference Dealer") for the purchase by
such Reference Dealer of the Specified Currency in exchange for U.S. dollars, in
an amount equal to the Conversion Amount in respect of each Payment Date. Such
quotation shall be obtained as of approximately 11:00 a.m. New York City time on
the second Business Day preceding the applicable Payment Date, for settlement of
the related exchange transaction on such Payment Date, and such Reference Dealer
shall be requested, in providing its quote, to indicate its willingness to enter
into an exchange transaction at the rate so quoted. If the Exchange Rate Agent
provides the quotation, it shall be under no obligation to obtain any quotations
from other foreign exchange dealers. Any quotations provided by the Exchange
Rate Agent will be at a rate comparable to a rate at which the Exchange Rate
Agent would be willing, at such time, to enter into a foreign exchange
transaction in the relevant Conversion Amount with a counterparty that is not a
foreign exchange dealer. For the avoidance of doubt, the Corporation
acknowledges and agrees that such quotation will entail a spread that will
constitute a profit to the Exchange Rate Agent and will not necessarily be a
mid-market rate. If the Conversion Amount is less than an amount on which the
Exchange Rate Agent would engage in a wholesale transaction in the ordinary
course of its business, the Corporation acknowledges and agrees that the spread
may be greater than on a transaction involving a Conversion Amount on which the
Exchange Rate Agent would engage in a wholesale transaction in the ordinary
course of its business.
(c) The Exchange Rate Agent, on behalf of the Corporation, shall enter
into an agreement, at the time of the determination of the Conversion Rate (as
defined below) in respect of each Payment Date, for the sale of the Conversion
Amount for U.S. dollars for delivery on the
-2-
Payment Date, such agreement to be entered into with the Reference Dealer which
shall have provided the relevant quotation, and such sale to be at the
Conversion Rate. The Corporation shall be bound by such agreement as principal
as if it had entered into such agreement directly and shall assert no objection
thereto based, in whole or in part, upon the Conversion Rate. The Exchange Rate
Agent shall notify the Corporation and the Paying Agent, by telex, telefax or
telephone and confirmed promptly in writing, of the exchange rate for the
Specified Currency at which such agreement was entered into (such rate being
referred to herein as the "Conversion Rate").
(d) Prior to each Payment Date, the Exchange Rate Agent will give
telephonic notice to the Corporation of the place (including the account number
and related information) to which the Conversion Amount shall be paid on the
second Business Day prior to the Payment Date to the Exchange Rate Agent by the
Corporation. Such telephonic notice shall be confirmed in writing as soon as
practicable thereafter in accordance with Section 9. In the event the Exchange
Rate Agent fails to give such notice, the Corporation shall be entitled to rely
on the payment instructions with respect to the immediately preceding Payment
Date.
(e) As early as practicable on the second Business Day prior to the
Payment Date, the Corporation will deposit the Conversion Amount into the
account of the Exchange Rate Agent specified pursuant to Section 3(d) above. On
the Payment Date, the Exchange Rate Agent shall (i) exchange the Conversion
Amount for U.S. Dollars pursuant to the agreement referred to in Section 3(c)
above, (ii) deduct all currency exchange costs pursuant to Section 4 hereof and
(iii) transfer the remaining U.S. dollars to, or as directed by, the Paying
Agent, on behalf of the Corporation, for payment to the Holders of the Notes in
accordance with their terms.
(f) In the event that the Exchange Rate Agent enters into an agreement
pursuant to Section 3(c) above but is unable to convert the entire Conversion
Amount to U.S. dollars, for whatever reason, then the Corporation shall remit to
the Paying Agent on the Payment Date an amount in U.S. dollars equal to the
amount which would have been received on conversion, at the Conversion Rate, of
that portion of the Conversion Amount remaining unconverted, and such
unconverted portion of the Conversion Amount shall be returned to the
Corporation.
(g) If the Exchange Rate Agent is not willing to provide a quotation
in respect of a particular Payment Date, it will make a good faith attempt to
obtain quotations from three other Reference Dealers. If none of such Reference
Dealers is willing to provide a quotation, (i) the Exchange Rate Agent shall
notify the Corporation and the Paying Agent accordingly, by telex, telefax or
telephone and confirmed promptly in writing and (ii) no conversion shall be made
on such Payment Date and all Note Payments on such Payment Date shall be made in
the Specified Currency.
4. Fees and Expenses. So long as any of the Notes remains Outstanding,the
Corporation will pay to the Exchange Rate Agent a fee to be determined between
the parties in respect of its services to be rendered hereunder. The Corporation
will also pay, upon receiving an accounting therefor from the Exchange Rate
Agent, the reasonable out-of-pocket expenses (including legal, advertising,
telex and cable expenses) incurred by the Exchange Rate Agent in connection with
-3-
its services to the Corporation as Exchange Rate Agent hereunder, such
accounting to be conclusive absent manifest error. It is understood that all
currency exchange costs will be borne by the Holders of the Notes whose Note
Payments are required to be converted into U.S. dollars, and will be deducted by
the Exchange Rate Agent from the U.S. dollars received by the Exchange Rate
Agent on each Payment Date pursuant to Section 3(e) hereof.
5. Indemnification. Notwithstanding any satisfaction or discharge of the
Notes or the Indenture, the Corporation will indemnify the Exchange Rate 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 expenses and fees of legal or other professional
advisors, of defending or investigating any claim, action or demand, except such
as may result from the gross negligence, wilful misconduct or bad faith of the
Exchange Rate Agent or any of its employees. Except as provided in the preceding
sentence, the Exchange Rate Agent shall incur no liability and shall be
indemnified and held harmless by the Corporation for or in respect of any action
taken or suffered to be taken in good faith by the Exchange Rate Agent in
reliance upon (i) the written opinion or advice of legal or other professional
advisors or (ii) written instructions from the Corporation.
6. Terms and Conditions. The Exchange Rate Agent accepts its obligations
herein set out upon the terms and conditions hereof, including the following, to
all of which the Corporation agrees:
(i) in acting under this Agreement, the Exchange
Rate Agent is acting solely as agent of the Corporation and
does not assume any obligation toward, 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, direction or other
communication from the Corporation made or given under any
provision of this Agreement shall be sufficient if signed by
any person who the Exchange Rate Agent reasonably believes to
be a duly authorized officer or attorney-in-fact of the
Corporation;
(iii) the Exchange Rate Agent shall be obliged to
perform only such duties as are set out specifically herein
and any duties necessarily incidental thereto;
(iv) the Exchange Rate 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 Exchange Rate Agent;
(v) the Exchange Rate Agent shall incur no
liability hereunder except for loss sustained by reason of its
gross negligence, wilful misconduct or bad faith; and
(vi) in no event shall the Exchange Rate 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 Exchange Rate Agent has been advised of
the likelihood of such loss or damage and regardless of the
form of action.
7. Resignation; Removal; Successors. (a) The Exchange Rate Agent may at any
time resign as Exchange Rate Agent by giving written notice to the Corporation
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 Corporation
otherwise agrees in writing. The Exchange Rate Agent hereunder may be removed by
the filing with it of an instrument in writing signed by the Corporation
specifying such removal and the date when it shall become effective (such
effective date being at least 20 days after the said filing). Such resignation
or removal shall take effect upon the earlier of (i) the effective date thereof
as set forth in the notice of resignation or instrument of removal and (ii)(a)
the appointment by the Corporation as hereinafter provided of a successor
Exchange Rate Agent and (b) the acceptance of such appointment by such successor
Exchange Rate Agent; provided, however, that in the event the Exchange Rate
Agent has given not less than 60 days' prior notice of its desired resignation,
and during such 60 days there has not been acceptance by a successor Exchange
Rate Agent of its appointment as successor Exchange Rate Agent, the Exchange
Rate Agent so resigning may petition any court of competent jurisdiction for the
appointment of a successor Exchange Rate Agent. The Corporation covenants that
it shall appoint a successor Exchange Rate Agent as soon as practicable after
receipt of any notice of resignation hereunder. Upon its resignation or removal
becoming effective, the retiring Exchange Rate Agent shall be entitled to the
reimbursement of all unpaid reasonable out-of-pocket expenses (including legal,
advertising, telex and cable expenses) incurred in connection with the services
rendered by the retiring Exchange Rate Agent to the date such resignation or
removal becomes effective.
(b) If at any time the Exchange Rate Agent shall resign or be removed,
or shall become incapable of acting or shall be adjudged bankrupt or insolvent,
or an order is made or effective resolution is passed to wind up the Exchange
Rate Agent, or if the Exchange Rate 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 any 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 Exchange Rate 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 Exchange
Rate Agent under the provisions of any applicable bankruptcy or insolvency law,
or if any public officer shall take charge or control of the Exchange Rate Agent
or its property or affairs for the purpose of rehabilitation, conservation or
liquidation, then a successor Exchange Rate Agent shall be appointed by the
Corporation by an instrument in writing filed with the successor Exchange Rate
Agent. Except as provided in Section 7(a) hereof, upon the appointment as
aforesaid of a successor Exchange Rate Agent and its acceptance of such
appointment, the Exchange Rate Agent so replaced shall cease to be Exchange Rate
Agent hereunder.
-5-
(c) Any successor Exchange Rate Agent hereunder shall execute and
deliver to its predecessor and the Corporation an instrument accepting such
appointment hereunder, and thereupon such successor Exchange Rate 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 the Exchange Rate Agent hereunder, and such
predecessor, upon payment of its charges and disbursements then unpaid, shall
thereupon become obliged to transfer and deliver, and such successor Exchange
Rate Agent shall be entitled to receive, copies of any relevant records
maintained by such predecessor Exchange Rate Agent.
(d) Any corporation into which the Exchange Rate Agent may be merged
or converted, any corporation with which the Exchange Rate Agent may be
consolidated or any corporation resulting from any merger, conversion or
consolidation to which the Exchange Rate Agent shall be a party shall, to the
extent permitted by applicable law, be the successor Exchange Rate 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 Corporation, the Paying Agent
and the Trustee.
(e) The Corporation shall promptly notify the Trustee and the Paying
Agent of the appointment of any successor Exchange Rate Agent hereunder.
(f) The provisions of Section 5 hereof shall survive any resignation
or removal hereunder.
8. Certain Definitions. As used herein, "Business Day" means, with respect
to a particular Note, any day which is not a Saturday or a Sunday and which is
neither a legal holiday nor a day on which banking institutions are authorized
or required by law or regulation to close in The City of New York or the
financial center of the country or governmental entity issuing the Specified
Currency.
9. Notices. Except as otherwise provided herein, any notice required to be
given hereunder shall be delivered in person against written receipt, sent by
letter, 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 (a) the Corporation, to it at
Dominion Resources, Inc., 000 Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000,
telecopy (000) 000-0000, Attention: Financing Manager - Public Markets, (b) the
Exchange Rate Agent, to it at JPMorgan Chase Bank, 000 Xxxx 00xx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000-0000, telecopy (000) 000-0000, Attention: Institutional
Trust Services, with a copy to the Trustee, or (c) the Paying Agent or the
Trustee, to JPMorgan Chase Bank, 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. Any notice hereunder given by telex, telecopy or letter shall
be deemed to be served when received.
10. Governing Law. This Agreement is governed by and shall be construed in
accordance with the laws of the State of New York, without reference to choice
of law doctrine.
-6-
11. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
12. Benefit of Agreement. This Agreement is solely for the benefit of the
parties hereto and their successors and assigns and no other person shall
acquire or have any rights under or by virtue hereof.
-7-
IN WITNESS WHEREOF, this Exchange Rate Agent Agreement has been entered
into as of the day and year first above written.
DOMINION RESOURCES, INC.
By
Title:
JPMORGAN CHASE BANK,
as Exchange Rate Agent
By
Title:
-8-
