Exhibit 4.5
CONSOLIDATED NATURAL GAS COMPANY
MEDIUM-TERM NOTES
EXCHANGE RATE AGENT AGREEMENT
AGREEMENT made as of May 22, 2002, between CONSOLIDATED
NATURAL GAS COMPANY (the "Corporation") and Bank One Trust Company, National
Association (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 April 1, 2001 (the "Indenture"), between the Corporation and Bank
One Trust Company, National Association, 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
Bank One Trust Company, National Association, 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;
Exibit 4.5
NOW IT IS HEREBY AGREED that:
1. Appointment of Agent. The Corporation hereby appoints Bank
--------------------
One Trust Company, National Association 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 forms of Notes 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
3
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 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").
4
(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
5
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 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
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;
(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; and
(vii) the Exchange Rate Agent may perform any of its duties
hereunder through one or more of its affiliates and such affiliates
shall be have the rights and duties of the Exchange Rate Agent as if
named hereunder.
7
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
8
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.
(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.
9
(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., ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, telecopy (▇▇▇) ▇▇▇-▇▇▇▇, Attention: Financing Manager - Public
Markets, (b) the Exchange Rate Agent, to it at Bank One Trust Company, National
Association, ▇▇▇ ▇▇▇▇ ▇▇/▇▇/ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
Corporate Trust Administration, with a copy to the Trustee, or (c) the Paying
Agent or the Trustee, to Bank One Trust Company, National Association, ▇▇▇ ▇▇▇▇
▇▇/▇▇/ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust
Administration, 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.
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.
10
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.
IN WITNESS WHEREOF, this Exchange Rate Agent Agreement has
been entered into as of the day and year first above written.
CONSOLIDATED NATURAL GAS COMPANY
By /s/ G. ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------
G. ▇▇▇▇▇ ▇▇▇▇▇▇
Senior Vice President and Treasurer
BANK ONE TRUST COMPANY, NATIONAL
ASSOCIATION
as Exchange Rate Agent
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------