U.S. $____________
DOMINION RESOURCES, INC.
Medium-Term Notes
Series A
DISTRIBUTION AGREEMENT
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____________ ______________
____________ ______________
____________ ______________
____________ ______________
____________ ______________
____________ ______________
____________ ______________
____________ ______________
____________ ______________
The undersigned, Dominion Resources, Inc. (the Company), hereby confirms
its agreement with each of you with respect to the issuance and sale by the
Company of the below-described Notes.
Subject to the terms and conditions stated herein, the Company (i) hereby
appoints each of ____________, ____________, ____________, ____________,
____________ and ____________, as an agent of the Company, for the purpose of
soliciting and receiving offers to purchase such Notes from the Company by
others, and (ii) hereby agrees that whenever the Company determines to sell such
Notes directly to one or more of you as principal for resale to others it will,
if requested by any of you to whom such Notes are to be sold, enter into a Terms
Agreement relating to such sale in accordance with the provisions of Section
3(b) hereof. The Company reserves the right to sell such Notes directly on its
own behalf to investors, and to or through any of you or any other person whom
the Company may appoint as agent in the future. As used herein, the terms
"Agent", "you", "your" and the like shall refer to each of ____________,
____________, ____________, ____________, ____________ and ____________, and any
other agent named by the Company who becomes a party to this Agreement,
individually, and, as the context requires, to all of such firms collectively.
1. Description of Notes. The Company proposes to issue and sell up to
U.S. $____________* aggregate principal amount of its Medium-Term Notes,
Series A due 9 months or more from the date of issue (the Notes). The Notes will
have the maturity ranges, interest rates per annum, redemption and repayment
provisions and other terms specified from time to time in the Prospectus
referred to below. The Notes are to be issued pursuant to the Company's
Indenture, dated as of June 1, 2000, between the Company and the JPMorgan Chase
Bank (formerly known as The Chase Manhattan Bank), as Trustee (the Trustee), as
previously supplemented, and as further supplemented by a ______ Supplemental
Indenture, dated as of ____________, (such Indenture, as supplemented, is
referred to herein as the Indenture). All capitalized terms not defined herein
have the meanings ascribed to them in the Indenture.
2. Representations and Warranties of the Company. The Company
represents and warrants to you that:
(a) The registration statement on Form S-3 (Reg. No. ____________,)
for the registration of debt securities, including the Notes, junior
subordinated debentures, trust preferred securities and related
guarantee, common stock, preferred stock, stock purchase contracts and
stock purchase units under the Securities Act of 1933, as amended (the
Securities Act), heretofore filed with the Securities and Exchange
Commission (the Commission), has been declared effective. The
registration statement, including all exhibits thereto, (and any
further registration statements which may be filed by the Company for
the purpose of registering additional Notes and in connection with
which this Agreement is included as an exhibit) and the prospectus
constituting a part of such registration statement, and any prospectus
supplement relating to the Notes, as from time to time amended or
supplemented by the filing of documents pursuant to the Securities
Act, the Securities Exchange Act of 1934, as amended (the Exchange
Act) or otherwise, are referred to herein as the "Registration
Statement" and the "Prospectus", respectively. As used herein, the
terms "Registration Statement" and "Prospectus" include all documents
or portions thereof (including any Current Report on Form 8-K)
incorporated therein by reference, and shall include any documents or
portions thereof (including any Current Report on Form 8-K) filed
after the date of such Registration Statement or Prospectus and
incorporated therein by reference from the date of filing of such
incorporated documents (collectively, the Incorporated Documents).
(b) No order suspending the effectiveness of the Registration
Statement or otherwise preventing or suspending the use of the
Prospectus has been issued by the Commission and is in effect and no
proceedings for that purpose are pending before or, to the knowledge of
the Company, threatened by the Commission. The Registration Statement
and the Prospectus comply in all material respects with the provisions
of the Securities Act, the Exchange Act, the
____________________
* Or the equivalent in foreign currencies or composite currencies as specified
in a pricing supplement (with U.S. dollars or such specified foreign currencies
or composite currencies being referred to herein as the "Specified Currency").
2
Trust Indenture Act of 1939, as amended (the Trust Indenture Act), and
the related rules, regulations and releases of the Commission (the
Rules and Regulations), and neither the Registration Statement on the
date it was declared effective (the Effective Date) nor the
Prospectus on the date hereof contained or contains an untrue statement
of a material fact or omitted or omits to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that the foregoing
representations and warranties in this Section 2 (b) shall not apply to
statements in or omissions from the Registration Statement or the
Prospectus made in reliance upon and in conformity with information
furnished in writing to the Company by you or on behalf of any of you
for use in the Registration Statement or Prospectus or to that part of
the Registration Statement constituting the Trustee's Statement of
Eligibility and Qualification under the Trust Indenture Act; and
provided, further, that the foregoing representations and warranties
are given on the basis that any statement contained in an Incorporated
Document shall be deemed not to be contained in the Registration
Statement or Prospectus if such statement has been modified or
superseded by any statement in a subsequently filed Incorporated
Document or in the Registration Statement or Prospectus.
(c) The Indenture qualifies under, and conforms in all material
respects to the requirements of, the Trust Indenture Act.
(d) Deloitte & Touche LLP, who have audited certain of the
Company's financial statements filed with the Commission and
incorporated by reference in the Registration Statement, are
independent public accountants as required by the Securities Act and
the Rules and Regulations relating to the Securities Act.
(e) Except as reflected in, or contemplated by, the
Registration Statement and Prospectus (exclusive of any amendments or
supplements after the date hereof), since the respective most recent
dates as of which information is given in the Registration Statement
and Prospectus (exclusive of any amendments or supplements after the
date hereof), there has not been any material adverse change or event
which would result in a material adverse effect on the condition of the
Company and its subsidiaries taken as a whole, financial or otherwise
(a Material Adverse Effect). The Company and its subsidiaries taken as
a whole has no material contingent liability which is not disclosed in
the Registration Statement and the Prospectus.
(f) The Company has taken all corporate action necessary to be
taken by it to authorize the execution by it of this Agreement and the
performance by it of all obligations on its part to be performed
hereunder; and the consummation of the transactions contemplated in
this Agreement and in the Registration Statement (including the
issuance and sale of the Notes and the use of the proceeds from the
sale of the Notes as described in the Prospectus under the caption "Use
of Proceeds") and compliance by the Company with its obligations under
this
3
Agreement, the Indenture and the Notes do not and will not, whether
with or without the giving of notice or lapse of time or both,
conflict with or constitute a breach of, or default under or result in
the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any subsidiary pursuant to any
contract, indenture, mortgage, deed of trust, loan or credit agreement,
note, lease or any other agreement or instrument, to which the Company
or any subsidiary is a party or by which it or any of them may be
bound, or to which any of the property or assets of the Company or any
subsidiary is subject (except for such conflicts, breaches or defaults
or liens, charges or encumbrances that would not have a Material
Adverse Effect), nor will such action result in any violation of the
provisions of the charter or bylaws of the Company or any subsidiary,
or any applicable law, statute, rule, regulation, judgment, order, writ
or decree of any government, government instrumentality or court,
domestic or foreign, having jurisdiction over the Company or any
subsidiary or any of their respective properties, assets or operations,
and the Company has full power and authority to authorize, issue and
sell the Notes as contemplated by this Agreement, except to the extent
that the issuance of some or all of the Notes is not authorized by an
order or orders of the Commission pursuant to the Public Utility
Holding Company Act of 1935, as amended (the ▇▇▇▇ ▇▇▇) in effect at the
time of such issuance, in which case the Company will issue only an
amount of Notes that is authorized by the order or orders of the
Commission under the 1935 Act then in effect.
(g) The Notes, upon issuance thereof, will conform in all
respects to the terms of the relevant order or orders of the Commission
pursuant to the 1935 Act then in effect with respect to the Notes.
(h) This Agreement has been duly authorized, executed and
delivered by the Company.
(i) The Indenture has been duly authorized, executed and
delivered by the Company and is a valid and legally binding agreement
of the Company, enforceable against the Company in accordance with its
terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
the enforcement of creditors' rights generally or by general equitable
principles (regardless of whether enforcement is considered in a
proceeding in equity or at law), and except further as enforcement
thereof may be limited by requirements that a claim with respect to any
debt securities issued under the Indenture that are payable in a
foreign or composite currency (or a foreign or composite currency
judgment in respect of such claim) be converted into U.S. dollars at a
rate of exchange prevailing on a date determined pursuant to applicable
law or by governmental authority to limit, delay or prohibit the making
of payments outside the United States.
(j) The Notes have been duly authorized by the Company for
offer, sale, issuance and delivery pursuant to this Agreement and, when
issued, authenticated
4
and delivered in the manner provided for in the Indenture and
delivered against payment of the consideration therefor, will
constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their terms, except
as enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally or by general equitable
principles (regardless of whether enforcement is considered in a
proceeding in equity or at law), and except further as enforcement
thereof may be limited by requirements that a claim with respect to
any Notes payable in a foreign or composite currency (or a foreign or
composite currency judgment in respect of such claim) be converted
into U.S. dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or by governmental authority to
limit, delay or prohibit the making of payments outside the United
States; the Notes will be substantially in the form attached as
Exhibits 4.2 and 4.3 to the Company's Current Report on Form 8-K,
filed with the Commission on or about ____________, and each holder of
Notes will be entitled to the benefits of the Indenture.
(k) Consolidated Natural Gas Company, Dominion Exploration &
Production, Inc., Dominion Energy, Inc., Dominion Nuclear Connecticut,
Inc., Dominion Nuclear, Inc., Dominion Nuclear Marketing II, Inc.,
Dominion Transmission, Inc., The East Ohio Gas Company and Virginia
Electric and Power Company are the only Significant Subsidiaries of
the Company as such term is defined in Rule 1-02 of Regulation S-X.
All of the issued and outstanding capital stock of each Significant
Subsidiary has been duly authorized and validly issued, is fully paid
and nonassessable, and, with the exception of the outstanding
preferred stock of Virginia Electric and Power Company which is owned
by third parties, the capital stock of each Significant Subsidiary is
owned by the Company, directly or through subsidiaries, free and clear
of any security interest, mortgage, pledge, lien, claim, encumbrance
or equitable right.
(l) The Company is not, and, after giving effect to the offering
and sale of the Notes and the application of the proceeds thereof as
described in the Prospectus, will not be, an "investment company" or a
company "controlled" by an "investment company" which is required to
be registered under the Investment Company Act of 1940, as amended.
3. Solicitations as Agent; Purchases as Principal.
(a) Solicitations as Agent. On the basis of the representations
and warranties herein contained, but subject to the terms and
conditions herein set forth, each of you agree, as agent of the
Company, to use your best efforts to solicit offers to purchase the
Notes upon the terms and conditions set forth in the Prospectus.
The Company reserves the right, in its sole discretion, to
suspend solicitation of offers to purchase the Notes in any Specified
Currency, for any
5
period of time or permanently. Upon receipt of instructions from the
Company, you will, as soon as practicable, but in no event later than
one business day after receipt of instruction from the Company,
suspend solicitation of offers to purchase the Notes from the Company
until such time as the Company has advised you that such solicitation
may be resumed.
The Company agrees to pay you a commission, at the time of
settlement of each sale of Notes by the Company as a result of a
solicitation made by you, in an amount in U.S. dollars (which, in the
case of Notes denominated in currency units or in currencies other than
U.S. dollars, shall be based on the Exchange Rate (as defined below))
equal to the applicable percentage of the aggregate principal amount of
each Note sold as set forth in Schedule A attached hereto.
Unless otherwise agreed to, as agent, you are authorized to
solicit orders for the Notes at the principal amount thereof only in
the denominations specified in the applicable pricing supplement (which
will be either U.S. $25* or U.S. $1,000* and integral multiples of
such denominations in excess thereof) at a purchase price equal to
100% of the principal amount thereof, unless otherwise specified in a
supplement to the Prospectus. You shall communicate to the Company,
orally or in writing, each offer to purchase Notes received by you as
agent, other than those rejected by you. The Company shall have the
sole right to accept offers to purchase Notes and may reject any such
offer in whole or in part. You shall have the right, in your
discretion reasonably exercised, to reject any offer received by you
to purchase the Notes, in whole or in part, and any such rejection
shall not be deemed a breach of your agreement contained herein.
No Note which the Company has agreed to sell pursuant to this
Agreement shall be deemed to have been purchased and paid for, or sold,
by the Company until such Note shall have been delivered to the
purchaser thereof against payment by such purchaser.
The "Exchange Rate" on a given date for a Specified Currency
other than U.S. dollars means the noon dollar buying rate in New York
City on such date for cable transfers for the Specified Currency as
certified for customs purposes (or if not so certified, as otherwise
determined) by the Federal Reserve Bank of New York.
(b) Purchases as Principal. Each sale of Notes to you as
principal shall be made in accordance with the terms of this Agreement
and a separate agreement which will provide for the sale of such Notes
to, and the purchase and reoffering thereof by, you. Each such separate
agreement (which may be oral or written, and which may be substantially
in the form of Exhibit A hereto or which may take the form of an
exchange of any standard form of written telecommunication between you
and the Company) is herein referred to as a "Terms Agreement". Your
commitment to purchase Notes as principal, whether pursuant to a Terms
________________
* Or the equivalent of U.S. $25 or U.S. $1,000, as the case may be, in the
Specified Currency.
6
Agreement or otherwise, shall be deemed to have been made on the basis
of the representations and warranties of the Company herein contained
and shall be subject to the terms and conditions herein set forth.
Each agreement by you to purchase Notes as principal shall specify the
principal amount of Notes to be purchased by you pursuant thereto, the
price to be paid to the Company for such Notes, and such other terms,
conditions and requirements as may be agreed upon between us. Each
such agreement shall also specify any requirements for officers'
certificates, opinions of counsel and letters from the independent
public accountants of the Company pursuant to Section 7 hereof. A
Terms Agreement may also specify certain provisions relating to the
reoffering of such Notes by you. Each purchase of Notes, unless
otherwise agreed, shall be at a discount from the principal amount of
each such Note equivalent to the applicable commission set forth in
Schedule A hereto. You may utilize a selling or dealer group in
connection with the resale of the Notes purchased by you as principal.
If the Company and two or more Agents enter into an agreement
pursuant to which such Agents agree to purchase Notes from the Company
as principal and one or more of such Agents shall fail at the
Settlement Date to purchase the Notes which it or they are obligated to
purchase (the "Defaulted Notes"), then the nondefaulting Agents shall
have the right, within 24 hours thereafter, to make arrangements for
one of them or one or more other Agents or underwriters to purchase
all, but not less than all, of the Defaulted Notes in such amounts as
may be agreed upon and upon the terms herein set forth; provided,
however, that if such arrangements shall not have been completed within
such 24-hour period, then:
(1) if the aggregate principal amount of Defaulted Notes does
not exceed 10% of the aggregate principal amount of Notes to be so
purchased by all of such Agents on the Settlement Date, the
nondefaulting Agents shall be obligated, severally and not jointly, to
purchase the full amount thereof in the proportions that their
respective initial underwriting obligations bear to the underwriting
obligations of all nondefaulting Agents; or
(2) if the aggregate principal amount of Defaulted Notes
exceeds 10% of the aggregate principal amount of Notes to be so
purchased by all of such Agents on the Settlement Date, such agreement
shall terminate without liability on the part of any nondefaulting
Agent.
No action taken pursuant to this paragraph shall relieve any
defaulting Agent from liability in respect of its default. In the event
of any such default which does not result in a termination of such
agreement, either the nondefaulting Agents or the Company shall have
the right to postpone the Settlement Date for a period not exceeding
seven days in order to effect any required changes in the Registration
Statement or the Prospectus or in any other documents or arrangements.
4. Administrative Procedures. Procedural details relating to the
issuance and delivery of Notes, the solicitation of offers to purchase by
others, and purchase by you as
7
principal, of Notes, and the payment in each case therefor, shall be agreed upon
between the Company and each of you, as applicable (the Administrative
Procedures), and shall be furnished to the Trustee. Each of you and the Company
agree to perform, and the Company agrees to cause the Trustee to perform, the
respective duties and obligations substantially as provided to be performed by
each in the Administrative Procedures, attached hereto as Exhibit D, as amended
from time to time.
5. Time and Place of Closing. The documents required to be delivered on
the "Closing Date" pursuant to Section 7 hereof shall be delivered at
____________, ____________, at ____________, ____________ time, on ____________,
or at such other time and/or place as you and the Company may agree upon in
writing, the time and date of such delivery being herein called the "Closing
Date".
6. Covenants of the Company. The Company agrees that:
(a) On or prior to the Closing Date, the Company will deliver
to you conformed copies of the Registration Statement as originally
filed and of all amendments or supplements thereto, including any
post-effective amendment (in each case including all exhibits filed
therewith and including copies of each consent and certificate included
therein or filed as an exhibit thereto, except exhibits incorporated by
reference unless specifically requested). After the Closing Date, the
Company will deliver to you as many copies of the Registration
Statement and Prospectus and of all amendments thereto (in each case
without exhibits) as you may reasonably request for the purposes
contemplated by the Securities Act or the Exchange Act.
(b) As soon as the Company is advised thereof, it will advise
you orally of: (i) the issuance of any stop order under the Securities
Act with respect to the Registration Statement, or the institution of
any proceedings therefor of which the Company shall have received
notice, and (ii) any change in the rating assigned by any "nationally
recognized statistical rating organization" (as that term is defined by
the Commission for purposes of Rule 436(g)(2) under the Securities Act)
to any debt securities (including the Notes) of the Company, or any
notification from such an organization of any intended or potential
downgrading or of any review for a possible change with possible
negative implications in its ratings of such securities. The Company
will use its best efforts to prevent the issuance of any stop order and
to secure the prompt removal thereof, if issued.
(c) The Company will pay all expenses in connection with (i)
the preparation and filing by it of the Registration Statement and
Prospectus, (ii) the preparation, issuance and delivery of the Notes,
(iii) any fees and expenses of the Trustee and (iv) the printing and
delivery to you in accordance with this Agreement of copies of the
Registration Statement and Prospectus (each as originally filed and as
subsequently amended or supplemented). The Company also will pay all
taxes, if any, on the issuance of the Notes. In addition, the
8
Company will pay the reasonable fees and disbursements of your counsel,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, including fees and disbursements incurred in
connection with qualifying the Notes under state securities or blue-sky
laws or investment laws (if and to the extent such qualification is
required by you or the Company), your reasonable out-of-pocket expenses
in connection with the transactions contemplated hereby and your
advertising expenses, which have been approved, in writing in advance,
by the Company.
(d) The Company will furnish you with copies of each further
amendment and supplement to the Prospectus in such quantities as you
may from time to time reasonably request. If at any time when the
delivery of the Prospectus shall be required by law in connection with
the sale of any Note, any event relating to or affecting the Company,
or of which the Company shall be advised in writing by you, shall
occur, which in the opinion of the Company or of your counsel should be
set forth in a supplement to or an amendment of the Prospectus in order
to make the Prospectus not misleading in the light of the circumstances
when it is delivered, or if for any other reason it shall be necessary
during such period to amend or supplement the Prospectus or any
document incorporated by reference in the Prospectus in order to comply
with the Securities Act, the Exchange Act or the Trust Indenture Act,
the Company forthwith will (i) notify you to suspend solicitation of
purchases of Notes and (ii) at its expense, prepare and furnish to you
a reasonable number of copies of the supplement or supplements or the
amendment or amendments to the Prospectus so that the Prospectus, as
supplemented or amended, will not contain any untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances when the
Prospectus is delivered, not misleading or which will effect any other
necessary compliance. During the period specified in the preceding
sentence, the Company will continue to prepare and file with the
Commission on a timely basis all documents or amendments required to be
filed by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of
the Exchange Act; provided, however, that the Company shall not file
its reports on Forms 10-Q or 10-K, including any amendments thereto
(other than amendments to Form 10-K filed solely pursuant to General
Instruction A to Form 11-K), without also furnishing copies thereof to
you and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP. Notwithstanding any other provision of
this Section 6(d), if before the earlier of: (i) the expiration of
thirty (30) days after the Prospectus has been amended or (ii) the
distribution of any Notes you may own as principal has been completed,
an event described above in this Section 6(d) occurs, the Company will,
at its own expense, forthwith prepare and cause to be filed promptly
with the Commission an amendment or supplement to the Registration
Statement or Prospectus, as then amended or supplemented, satisfactory
in all respects to you; will supply such amended or supplemented
Prospectus to you in such quantities as you may reasonably request; and
will furnish to you pursuant to Sections 7(c), 7(d) and 7(h) such
documents, certificates, opinions and letters as you may request in
connection with the preparation and filing of such amendment or
supplement.
9
(e) The Company will advise you promptly of any proposal to
amend or supplement the Registration Statement or the Prospectus
relating to the Notes (other than by filing a document under the
Exchange Act which will be incorporated by reference into the
Registration Statement or Prospectus, or an amendment or supplement
providing solely for a specification of the interest rates or other
terms of the Notes commonly included in a pricing supplement, or an
amendment or supplement relating solely to an offering of securities
other than the Notes) and will afford you a reasonable opportunity to
comment on any such proposed amendment or supplement.
(f) The Company will make generally available to its security
holders, as soon as it is practicable to do so, but not later than 90
days after the close of the period covered thereby, an earnings
statement of the Company (which need not be audited, but which will
comply with the provisions of Rule 158 under the Securities Act),
covering each 12-month period beginning, in each case, not later than
the first day of the Company's fiscal quarter next following the
"effective date" of the Registration Statement (as defined in such Rule
158) with respect to each sale of Notes.
(g) The Company will use its best efforts promptly to do and
perform all things to be done and performed by it hereunder prior to
the Closing Date and to satisfy all conditions precedent to the
delivery by it of the Notes.
(h) The Company will furnish such proper information as may be
lawfully required and otherwise cooperate in qualifying the Notes for
offer and sale under the securities or blue-sky laws of such states as
you may designate; provided, however, that the Company shall not be
required in any state to qualify as a foreign corporation, or to file a
general consent to service of process, or to submit to any requirements
that it deems unduly burdensome.
(i) If required pursuant to the terms of a Terms Agreement,
between the dates of any Terms Agreement and the settlement date with
respect to such Terms Agreement, the Company will not, without your
prior written consent, offer, sell, contract to sell or otherwise
dispose of any debt securities of the Company in a public offering
which are substantially similar to the Notes.
(j) If the Company enters into any amendment to this
Agreement, then such amendment shall be entered into by each of you;
provided, however, that this Agreement may be terminated in accordance
with Sections 7 or 12 herein as to any one of you without being
terminated as to the others of you.
(k) If the Company adds a new agent with respect to the Notes,
then such agent shall enter into an agreement substantially similar to
this Agreement, as such may be amended from time to time.
10
7. Conditions of Your Obligations. Your obligations as agent of the
Company to initiate solicitations of offers to purchase Notes and to continue
such solicitations, as the case may be, and your obligations to purchase Notes
as principal pursuant to any Terms Agreement or otherwise, shall be subject to
the continuing accuracy of the representations and warranties on the part of the
Company contained herein, to the accuracy of the statements of the Company's
officers made in any certificate furnished pursuant to the provisions hereof, to
the performance and observance by the Company of all covenants and agreements
contained herein on its part to be performed and observed and to the following
additional conditions:
(a) An order or orders of the Commission pursuant to the 1935
Act permitting the issuance and sale of the relevant amount of Notes
shall be in full force and effect and shall contain no provision
unacceptable to you or the Company (but all provisions of such order or
orders heretofore entered, copies of which have heretofore been
delivered to you, are deemed acceptable to you and the Company, and all
provisions of such order or orders hereafter entered shall be deemed
acceptable to you and the Company unless within 24 hours after
receiving a copy of any such order any party to this Agreement shall
give notice to the other parties to the effect that such order contains
an unacceptable provision).
(b) You shall receive on the Closing Date the opinion of
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, dated the Closing Date, substantially in the form
attached hereto as Exhibit B.
(c) You shall receive (i) on the Closing Date, (ii) on any
date that the Registration Statement or the Prospectus shall be amended
or supplemented (other than by an amendment or supplement providing
solely for the specification of the variable terms of the Notes
commonly included in a pricing supplement or an amendment or supplement
relating solely to an offering of securities other than the Notes),
including an amendment effected by the filing of a document that is
incorporated by reference into the Registration Statement or Prospectus
(other than (A) a Current Report on Form 8-K containing only
information responsive to Item 5 or Item 9 thereof, or Item 10 as
proposed or substantially as proposed in Securities Act Release No.
33-8090 (Item 10), and any exhibits relating to such information, (B)
the proxy materials of the Company that are distributed in connection
with the annual meeting of shareholders and do not contain disclosures
pursuant to Items 11, 12, 13, 14, 15 or 16 of Schedule 14A or (C) an
amendment to the Company's annual report on Form 10-K filed solely
pursuant to General Instruction A to Form 11-K) and (iii) each time, if
so indicated in the applicable Terms Agreement or otherwise, the
Company sells Notes to you as principal, the legal opinion of
McGuireWoods LLP or other counsel satisfactory to you in your
reasonable judgment, dated the Closing Date, the date of such
amendment, supplement, incorporation by reference or settlement date,
relating to a sale of Notes pursuant to a Terms Agreement or otherwise,
as the case may be, substantially in the form attached hereto as
Exhibit C. In lieu of such opinion to be delivered upon such amendment,
supplement, incorporation by reference or
11
settlement date relating to a sale of Notes under a Terms Agreement or
otherwise, each counsel last furnishing such an opinion to you shall
furnish you with a letter to the effect that you may rely upon such
last opinion to the same extent as though it were dated the date of
such letter authorizing reliance (except that statements in such last
opinion shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of delivery of such
letter authorizing reliance).
(d) You shall receive (i) on the Closing Date, (ii) on any
date that the Registration Statement or the Prospectus shall be amended
or supplemented to include additional financial information (other than
by an amendment or supplement relating solely to the issuance and/or
offering of securities other than the Notes), including an amendment
effected by the filing of a document that is incorporated by reference
into the Registration Statement or Prospectus (other than (A) a Current
Report on Form 8-K containing only information responsive to Item 5,
Item 9 or Item 10, thereof and any exhibits relating to such
information or (B) the proxy materials of the Company that do not
contain disclosures pursuant to Items 11, 12, 13, 14, 15 or 16 of
Schedule 14A) and (iii) each time, if so indicated in the applicable
Terms Agreement or otherwise, the Company sells Notes to you as
principal, from Deloitte & Touche LLP, or another independent public
accounting firm satisfactory to you, a letter addressed to you, dated
the Closing Date, the date of such amendment, supplement, incorporation
or settlement date relating to a sale pursuant to a Terms Agreement or
otherwise, as the case may be, containing statements and information of
the type ordinarily included in accountants' SAS 72 "comfort letters"
to underwriters with respect to financial statements and certain
financial information contained or incorporated by reference into the
Prospectus, including any pro forma financial information.
(e) Since the date of the most recent audited or unaudited
financial statements included in or incorporated by reference in the
Registration Statement and Prospectus, and, in the case of your
obligation to solicit offers to purchase Notes, up to the time of such
solicitations or since the date of any agreement by you to purchase
Notes as principal and, in the case of your obligation to purchase
Notes as principal, up to the settlement date relating to such purchase
pursuant to a Terms Agreement or otherwise, there shall not have been
any material adverse change or event which would result in a Material
Adverse Effect.
(f) Since the respective most recent dates as of which
information is given (i) in the Registration Statement and Prospectus,
as amended or supplemented through the date of this Agreement,
including by incorporation by reference therein, and up to the Closing
Date, the Company shall not have any material contingent liability,
except as reflected in or contemplated by the Registration Statement or
Prospectus as so amended or supplemented, (ii) in the Registration
Statement and Prospectus as amended or supplemented through the date of
any agreement by you to purchase Notes as principal, including by
incorporation by reference, and prior to each corresponding settlement
date, the
12
Company shall not have any material contingent liability, except as
reflected in or contemplated by the Registration Statement or
Prospectus as so amended or supplemented.
(g) The representations and warranties of the Company in this
Agreement shall be true and correct and the Company shall have
performed all obligations and satisfied all conditions required of it
under this Agreement (i) on the Closing Date and (ii) on any date that
the Registration Statement or the Prospectus shall be amended or
supplemented (other than by an amendment or supplement providing solely
for the specification of the variable terms of the Notes commonly
included in a pricing supplement or an amendment or supplement relating
solely to an offering of securities other than the Notes), including an
amendment effected by the filing of a document that is incorporated by
reference into the Registration Statement or Prospectus (other than (A)
a Current Report on Form 8-K containing only information responsive to
Item 5, Item 9, or Item 10 thereof and any exhibits relating to such
information, (B) the proxy materials of the Company that are
distributed in connection with the annual meeting of shareholders and
do not contain disclosures pursuant to Items 11, 12, 13, 14, 15 or 16
of Schedule 14A or (C) an amendment to the Company's annual report on
Form 10-K filed solely pursuant to General Instruction A to Form 11-K)
and (iii) each time, if so indicated in the applicable Terms Agreement
or otherwise, the Company sells Notes to you as principal.
(h) On the Closing Date and on any applicable date referred to in
Section 7(g)(ii) or (iii) hereof, as the case may be, you shall have
received a certificate, signed by the Chairman of the Board, the
President or any Vice President of the Company, it being understood
that such certificate shall relate to the Registration Statement and
Prospectus as amended or supplemented to the date of such certificate.
(i) All legal proceedings to be taken in connection with the
transactions contemplated by this Agreement shall have been
satisfactory to ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP.
In case any of the conditions specified above in this Section 7
shall not have been fulfilled, this Agreement may be terminated by any of you,
as to yourself only, upon mailing or delivering written notice thereof to the
Company; provided, however, that it shall not be considered a failure to fulfill
the conditions specified in Sections 7(c), 7(d) or 7(h) above if the Company
temporarily suspends its obligations under such sections in accordance with
Section 7A below. Any termination pursuant to the preceding sentence shall be
without liability of the terminating party and the Company to each other, except
as otherwise provided in Sections 6(c), 9(e) and 10 hereof.
7A. Temporary Suspension of Certain Obligations. After the Closing
Date, if the Company shall determine that it does not intend to be in the market
with respect to the Notes during the three months after the date of filing of a
quarterly report on Form
13
10-Q, an annual report on Form 10-K, or an amendment thereto, the Company may
deliver to each of you a notice, which shall be dated the date of delivery
thereof to each of you, to such effect (a Notice of Temporary Suspension), in
which event the obligations of the Company pursuant to Sections 7(c), 7(d) and
7(h) with respect to such filings shall be deemed suspended until such time as
the Company notifies each of you that it wishes to re-enter the market with
respect to the Notes (which could be earlier than three months after the date of
the Notice of Temporary Suspension) and delivers to each of you the documents
required by Sections 7(c), 7(d) and 7(h), but dated as of the date the Company
re-enters the market with respect to the Notes.
8. Additional Covenant of the Company. The Company agrees that each
acceptance by it of an offer for the purchase of Notes hereunder shall be deemed
to be an affirmation to you that the representations and warranties of the
Company contained in this Agreement are true and correct as of the date of such
acceptance as though made at and as of such time, and a covenant that such
representations and warranties will be true and correct as of the date of
delivery to the purchaser or the purchaser's agent of the Note or Notes relating
to such acceptance and, in the case of your obligation to purchase Notes as
principal, as of the settlement date relating to such purchase pursuant to a
Terms Agreement or otherwise, as though made at and as of each such date (except
that such representations and warranties shall be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented to each
such date).
9. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless you, your
officers and directors and each person who controls you within the
meaning of Section 15 of the Securities Act or Section 20(a) of the
Exchange Act, against any and all losses, claims, damages or
liabilities, joint or several, to which you or any of them may become
subject under the Securities Act, the Exchange Act or any other statute
or common law and to reimburse you and each of your officers, directors
and controlling persons for any legal or other expenses (including, to
the extent hereinafter provided, reasonable outside counsel fees)
incurred by you or them in connection with investigating or defending
any such losses, claims, damages, liabilities, or in connection with
defending any actions, insofar as such losses, claims, damages,
liabilities, expenses or actions arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or the Prospectus, in either
such document as originally filed or as amended or supplemented (if
such amendments or supplements thereto shall have been furnished
pursuant to Section 2(a) hereof), or the omission or alleged omission
to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided that
the indemnity agreement contained in this Section 9 shall not apply to
any such losses, claims, damages, liabilities, expenses or actions
arising out of or based upon any such untrue statement or alleged
untrue statement, or any such omission or alleged omission, if such
statement or omission was made in reliance upon information furnished
in writing to the Company by any of you or on behalf
14
of any of you for use in the Registration Statement or any amendment
thereto, in the Prospectus or in any supplement thereto. The indemnity
agreement of the Company contained in this Section 9(a) and the
representations and warranties of the Company contained in Section 2
hereof shall remain operative and in full force and effect, regardless
of any investigation made by you or on behalf of you or any such
controlling person, and shall survive the delivery of the Notes.
(b) Each of you agree, severally and not jointly, to indemnify
and hold harmless the Company, its officers and directors and each
person who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Exchange Act, against any and
all losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the Securities Act, the
Exchange Act or any other statute or common law and to reimburse each
of them for any legal or other expenses (including, to the extent
hereinafter provided, reasonable outside counsel fees) incurred by them
in connection with investigating or defending any such losses, claims,
damages or liabilities or in connection with defending any actions,
insofar as such losses, claims, damages, liabilities, expenses or
actions arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement or the Prospectus, as originally filed or as amended or
supplemented (if such amendments or supplements thereto shall have been
furnished pursuant to Section 6(a) hereof) or the omission or alleged
omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, if such
statement or omission was made in reliance upon information furnished
in writing to the Company by you or on your behalf for use in the
Registration Statement or the Prospectus or any amendment or supplement
to either thereof. The indemnity agreement of each of you contained in
this Section 9(b) shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of the Company or
any such controlling person, and shall survive the delivery of the
Notes.
(c) Each of you and the Company agree that, upon the receipt
of notice of the commencement of any action against the Company or any
of its officers or directors, or any person controlling the Company, or
against you, your officers, directors or any controlling person as
aforesaid, in respect of which indemnity may be sought on account of
any indemnity agreement contained herein, you or the Company, as the
case may be, will promptly give written notice of the commencement
thereof to the party or parties against whom indemnity shall be sought
hereunder, but the omission so to notify such indemnifying party or
parties of any such action shall not relieve such indemnifying party or
parties from any liability which it or they may have to the indemnified
party or parties otherwise than on account of such indemnity agreement.
In case such notice of any such action shall be so given, such
indemnifying party shall be entitled to participate at its own expense
in the defense or, if it so elects, to assume (in conjunction with any
other indemnifying parties) the defense of such action, in which event
such defense shall be conducted by counsel chosen by such
15
indemnifying party (or parties) and reasonably satisfactory to the
indemnified party or parties who shall be defendant or defendants in
such action, and such defendant or defendants shall bear the fees and
expenses of any additional outside counsel retained by them; provided
that, if the defendants (including impleaded parties) in any such
action include both the indemnified party and the indemnifying party
(or parties) and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those
available to the indemnifying party (or parties), the indemnified
party shall have the right to select separate counsel to assert and
direct such different or additional legal defenses and to participate
otherwise in the defense of such action on behalf of such indemnified
party. The indemnifying party shall bear the reasonable fees and
expenses of outside counsel retained by the indemnified party if (i)
the indemnified party shall have retained such counsel in connection
with the assertion of legal defenses in accordance with the proviso to
the preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than
one separate counsel (in addition to one local counsel), representing
the indemnified parties under Section 9(a) or 9(b), as the case may
be, who are parties to such action), (ii) the indemnifying party shall
have elected not to assume the defense of such action, (iii) the
indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of the commencement of the
action, or (iv) the indemnifying party has authorized the employment
of outside counsel for the indemnified party at the expense of the
indemnifying party. Notwithstanding the foregoing sentence, an
indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent (such consent not to
be unreasonably withheld), but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party
agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. No indemnifying
party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding
in respect of which indemnification may be sought hereunder (whether
or not the indemnified party is an actual or potential party to such a
proceeding), by such indemnified party, unless such settlement (x)
includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such proceeding and
(y) does not include a statement as to or an admission of fault,
culpability or failure to act by or on behalf of any indemnified
party.
(d) If the indemnification provided for in this Section 9 is
unavailable to or insufficient to hold harmless an indemnified party
under Section 9(a) or 9(b) above in respect of any losses, claims,
damages or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount
paid or payable to such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative fault of the
Company, on the one hand, and of
16
any of you participating in the transaction at issue, on the other, in
connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations,
including relative benefit. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to
state a material fact required to be stated therein or necessary in
order to make the statements therein not misleading relates to
information supplied by the Company on the one hand or by you on the
other hand and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The Company and each of you agree that it would not be just
and equitable if contribution pursuant to this Section 9(d) were
determined by pro rata allocation (even if all of you were treated as
one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred
to above in this Section 9(d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this
Section 9(d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f)
of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The
obligations of each of you under this Section 9(d) to contribute are
several in proportion to the respective purchases made by or through
you to which such loss, claim, damage or liability (or action in
respect thereof) relates and are not joint.
(e) The remedies provided for in this Section 9 are not exclusive
and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
10. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement or
contained in certificates of officers of the Company submitted pursuant to this
Agreement shall remain operative and in full force and effect regardless of any
investigation made by you or on your behalf or on behalf of any controlling
person of you, or by or on behalf of the Company, and shall survive each
delivery of and payment for any of the Notes.
11. Status as Agent. In soliciting offers by others to purchase Notes
from the Company, you are acting solely as agent for the Company, and not as
principal. You will make reasonable efforts to assist the Company in obtaining
performance by each purchaser whose offer to purchase Notes has been accepted by
the Company, but you shall not have any liability to the Company in the event
such purchase is not consummated for any reason. If the Company shall default on
its obligation to deliver Notes to a purchaser whose offer it has accepted, the
Company shall hold you harmless against any loss, claim or damage arising from
or as a result of such default by the Company.
17
12. Termination. This Agreement may be terminated for any reason, at
any time by any of you as to the Company or by the Company as to any of you upon
the giving by the terminating party of five (5) business days' written notice of
such termination to the other parties hereto. Each of you may also terminate any
agreement by you to purchase Notes as principal, immediately upon notice to the
Company, at any time at or prior to the settlement date relating thereto if
during such period (a) there shall have occurred any material adverse change in
the financial markets in the United States or in the financial markets of the
country or countries of origin of any foreign currency or currencies in which
the Notes are denominated or payable or any outbreak or escalation of
hostilities or other national or international calamity or crisis the effect of
which is such as to make it, in the judgment of the relevant Agent (which shall
be the lead manager(s) in the case of a syndicated transaction) impracticable or
inadvisable to market the Notes or enforce contracts for the sale of Notes on
the terms and in the manner contemplated in the Prospectus, or (b) if trading in
any securities of the Company has been suspended by the Commission or a national
securities exchange, or if trading generally on either the American Stock
Exchange or the New York Stock Exchange shall have been suspended, or any
limitation on prices in such trading or any restrictions on the distribution of
securities are established by either of such exchanges or by order of the
Commission or any other governmental authority, or if a banking moratorium shall
have been declared either by federal or New York authorities or by the relevant
authorities in the country or countries of origin of any foreign currency or
currencies in which the Notes are denominated or payable, or (c) after the
acceptance by you of such agreement to purchase Notes as principal and at or
prior to the settlement date relating thereto, the Company shall have sustained
a substantial loss by fire, flood, accident or other calamity which in the
judgment of the relevant Agent (which shall be the lead manager(s) in the case
of a syndicated transaction) renders it inadvisable to consummate the sale of
the Notes and the delivery of the Notes upon the terms set forth in such
agreement, regardless of whether or not such loss shall have been insured, or
(d) there shall have occurred a downgrading in the rating accorded the Company's
unsecured debt securities by any "nationally recognized statistical rating
organization" (as that term is defined by the Commission for purposes of Rule
436(g)(2) under the Securities Act) or such an organization shall have given
notice of any intended or potential downgrading or of any review for a possible
change with possible negative implications in its ratings of such securities.
In the event of any such termination, neither the terminating party nor
the terminated party shall have any liability to the other except as provided in
the third full paragraph of Section 3(a), Section 6(c), Section 9 and Section 10
and except that, if at the time of termination you shall own any of the Notes
with the intention of reselling them or an offer for the purchase of Notes shall
have been accepted by the Company but the time of delivery to the purchaser or
such purchaser's agent of the Note or Notes relating thereto shall not yet have
occurred, you shall comply with the Administrative Procedures, and the Company
shall also have the obligations provided in Sections 7(c) through (h) and
Section 8 hereof until such Notes have been resold or delivered, as the case may
be; provided, however, that the Company's obligation to comply with the
provisions of
18
Sections 7(c) through (h) and Section 8 hereof as set forth in the immediately
preceding clause of this sentence shall be subject to the following conditions:
(i) no stop order suspending the effectiveness of the Registration Statement
shall be in effect on the Closing Date and no proceedings for that purpose shall
be pending before, or to the knowledge of the Company threatened by, the
Commission on such date, and (ii) at the Closing Date, except as provided in
Section 3(f) herein, an order or orders of the Commission pursuant to the 1935
Act permitting the issuance and sale of the Notes substantially in accordance
with the terms and conditions hereof shall be in full force and effect and shall
contain no provision unacceptable to you or the Company (but all provisions of
such order or orders heretofore entered, copies of which have heretofore been
delivered to you, are deemed acceptable to you and the Company, and all
provisions of such order or orders hereafter entered shall be deemed acceptable
to you and the Company unless within 24 hours after receiving a copy of any such
order any party to this Agreement shall give notice to the other parties to the
effect that such order contains an unacceptable provision).
13. Miscellaneous. The validity and interpretation of this Agreement shall
be governed by the laws of the State of New York. This Agreement shall inure to
your benefit, the benefit of the Company and, with respect to the provisions of
Section 9 hereof, each person who controls you and each of your officers and
directors and each controlling person and each officer and director of the
Company referred to in Section 9, and their respective successors, assigns,
executors and administrators. Nothing in this Agreement is intended or shall be
construed to give to any person, firm or corporation any legal or equitable
right, remedy or claim under or in respect of this Agreement or any provision
herein contained. The term "successors" as used in this Agreement shall not
include any of the purchasers, as such, of any of the Notes.
14. Notices. Except as otherwise specifically provided herein or in the
Administrative Procedures, all communications hereunder shall be in writing and,
if to you, shall be sent by facsimile transmission, registered mail or delivered
to the address set forth under your signature below and, if to the Company,
shall be sent by facsimile transmission, registered mail or delivered to it,
attention of Treasurer, Dominion Resources, Inc., ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (facsimile: (▇▇▇) ▇▇▇-▇▇▇▇).
[the rest of this page is left blank intentionally]
19
Please sign and return to us a counterpart of this letter, whereupon
this letter will become a binding agreement between the Company and you in
accordance with its terms.
Very truly yours,
DOMINION RESOURCES, INC.
By:_________________________________
Name: ______________________________
Title: _____________________________
[the rest of this page is left blank intentionally]
20
The foregoing agreement is
hereby confirmed and accepted,
as of the date first
above written.
_______________________
By:______________________________
Authorized Signatory
Name:____________________________
Title:___________________________
Addresses for Notices:
_______________________
_______________________
_______________________
_______________________
_______________________
Telephone:
Facsimile:
with a copy to:
_______________________
_______________________
_______________________
_______________________
Telephone:
Facsimile:
[the rest of this page is left blank intentionally]
21
The foregoing agreement is
hereby confirmed and accepted,
as of the date first above written.
_______________________
By:______________________________
Authorized Signatory
Name:____________________________
Title:___________________________
Addresses for Notices:
_______________________
_______________________
_______________________
_______________________
_______________________
Telephone:
Facsimile:
With a copy to:
_______________________
_______________________
_______________________
_______________________
Telephone:
Facsimile:
[the rest of this page is left blank intentionally]
22
The foregoing agreement is
hereby confirmed and accepted,
as of the date first above written.
_______________________
By:______________________________
Authorized Signatory
Name:____________________________
Title:___________________________
Address for Notices:
_______________________
_______________________
_______________________
_______________________
_______________________
Telephone:
Facsimile:
[the rest of this page is left blank intentionally]
23
The foregoing agreement is
hereby confirmed and accepted,
as of the date first above written.
_______________________
By:______________________________
Authorized Signatory
Name:____________________________
Title:___________________________
Address for Notices:
_______________________
_______________________
_______________________
_______________________
Telephone:
Facsimile:
[the rest of this page is left blank intentionally]
24
The foregoing agreement is
hereby confirmed and accepted,
as of the date first above written.
_______________________
By:______________________________
Authorized Signatory
Name:____________________________
Title:___________________________
Addresses for Notices:
_______________________
_______________________
_______________________
_______________________
Telephone:
Facsimile:
_______________________
_______________________
_______________________
_______________________
_______________________
Telephone:
Facsimile:
[the rest of this page is left blank intentionally]
25
The foregoing agreement is
hereby confirmed and accepted,
as of the date first above written.
_______________________
By:______________________________
Authorized Signatory
Name:____________________________
Title:___________________________
Address for Notices:
_______________________
_______________________
_______________________
_______________________
Telephone:
Facsimile:
[the rest of this page is left blank intentionally]
26
SCHEDULE A
The Company will pay each Agent a commission, at the time of settlement
of each sale of Notes by the Company as a result of a solicitation made by such
Agent, in an amount equal to the following percentage of the aggregate principal
amount of such Notes sold:
Percentage of Aggregate
Principal Amount
Maturity Ranges of Notes Sold
--------------- --------------------------------------
More than 9 months to less than 1 year .125%
From 1 year to less than 18 months .150%
From 18 months to less than 2 years .200%
From 2 years to less than 3 years .250%
From 3 years to less than 4 years .350%
From 4 years to less than 5 years .450%
From 5 years to less than 6 years .500%
From 6 years to less than 7 years .550%
From 7 years to less than 10 years .600%
From 10 years to less than 15 years .625%
From 15 years to less than 20 years .700%
From 20 years to 30 years .750%
More than 30 years As agreed
A-1
EXHIBIT A
DOMINION RESOURCES, INC.
MEDIUM-TERM NOTES, SERIES A
FORM OF TERMS AGREEMENT
(Date)
Dominion Resources, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
Re: Distribution Agreement dated ____________
The undersigned agrees to purchase the following principal amount of
Notes, subject to the following terms, where applicable:
$_________________
(or principal amount of foreign or composite currency)
Minimum Denomination:
Interest Rate or Formula:
If Fixed Rate Note,
Fixed Rate:
Interest Payment Dates:
If Floating Rate Note,
___ Regular Floating Rate Note
___ Inverse Floating Rate Note
___ Floating/Fixed Rate Note
Base Rate or formula:
Spread and/or Spread Multiplier, if any:
Initial Interest Rate, if any:
Initial Interest Reset Date:
Interest Reset Dates:
Interest Payment Dates:
Index Currency, if any:
Index Maturity:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Fixed Rate Commencement Date, if any:
Fixed Interest Rate, if any:
Day Count Convention:
Calculation Agent:
A-1
If Redeemable at the Option of the Company,
Initial Redemption Date:
Initial Redemption Percentage: ____ % of par
Annual Redemption Percentage Reduction:
Limitation Date:
Refunding Rate:
If Repayment at the Option of the Holder,
Repayment Date(s):
Repayment Rate(s):
Original Issue Date:
Stated Maturity:
Purchase Price: _____% of par
Specified Currency:
Settlement Date and Time:
Requirements pursuant to Section 6(i) of the Distribution Agreement, if
any:
Additional/Other Terms:
Requirements pursuant to Sections 7(h), (c) and (d) of the Distribution
Agreement (check any that apply):
___ Officer's Certificate
___ Legal Opinion
___ Comfort Letter
______________________________________
[Name of Agent Purchasing as Principal]
By: __________________________________
Name:_________________________________
Title:________________________________
Accepted:
DOMINION RESOURCES, INC.
By: ____________________________________
Name:___________________________________
Title:__________________________________
A-2
EXHIBIT B
PROPOSED FORM OF OPINION
OF
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP
DOMINION RESOURCES, INC.
U.S. $____________ Medium-Term Notes, Series A
__________________
____________ ____________
____________ ____________
____________ ____________
____________ ____________
____________ ____________
____________ ____________
____________ ____________
____________ ____________
____________ ____________
Dear Ladies and Gentlemen:
We have acted as counsel for you in connection with arrangements for
the issuance by Dominion Resources, Inc. (the Company) of up to U.S.
$____________ aggregate principal amount of its Medium-Term Notes, Series A due
9 months or more from the date of issue (the Notes) under and pursuant to the
Company's Indenture, dated as of June 1, 2000, between the Company and JPMorgan
Chase Bank (formerly known as The Chase Manhattan Bank), as Trustee (the
Trustee), as previously supplemented, and as further supplemented by a ______
Supplemental Indenture, dated as of ____________ (such Indenture, as
supplemented, is referred to herein as the Indenture), and the offering of the
Notes by you pursuant to a Distribution Agreement, dated ____________, by and
between you and the Company (the Distribution Agreement). All terms not
otherwise defined herein shall have the meanings set forth in the Distribution
Agreement.
We have examined originals, or copies certified to our satisfaction, of
such corporate records of the Company, indentures, agreements and other
instruments, certificates of public officials, certificates of officers and
representatives of the Company and of the Trustee, and other documents, as we
have deemed necessary as a basis for the
B-1
opinions hereinafter expressed. As to various questions of fact material to such
opinions, we have, when relevant facts were not independently established,
relied upon certifications by officers of the Company, the Trustee and other
appropriate persons and statements contained in the Registration Statement
hereinafter mentioned. All legal proceedings taken as of the date hereof in
connection with the transactions contemplated by the Distribution Agreement have
been satisfactory to us.
In addition, we attended the closing held today at the offices of
McGuireWoods LLP, ▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, at which the Company
satisfied the conditions contained in Section 7 of the Distribution Agreement
which are required to be satisfied as of the Closing Date.
Based upon the foregoing, and having regard to legal considerations
which we deem relevant, as of the date hereof, we are of the opinion that:
A. The Company is a corporation duly incorporated and existing as a
corporation in good standing under the laws of Virginia and has the corporate
power to transact its business as described in the Prospectus.
B. An appropriate order of the Commission with respect to the sale of
the Notes under the Public Utility Holding Company of 1935, as amended, has been
issued, and such order remains in effect at this date and constitutes valid and
sufficient authorization for the sale of the Notes as contemplated by the
Distribution Agreement. No approval or consent by any public regulatory body,
other than such order and notification of effectiveness by the Commission is
legally required in connection with the sale of the Notes as contemplated by the
Distribution Agreement (except to the extent that compliance with the provisions
of securities or blue sky laws of certain states may be required in connection
with the sale of the Notes in such states) and the carrying out of the
provisions of the Distribution Agreement.
C. The Distribution Agreement has been duly authorized by all necessary
corporate action and has been duly executed and delivered by the Company.
D. The Indenture has been duly authorized, executed and delivered by
the Company and has been duly qualified under the Trust Indenture Act and
constitutes a valid and binding obligation of the Company, except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights generally or
by general equitable principles (regardless of whether enforcement is considered
in a proceeding in equity or at law), and except further as enforcement thereof
may be limited by requirements that a claim with respect to any debt securities
issued under the Indenture that are payable in a foreign or composite currency
(or a foreign or composite currency judgment in respect of such claim) be
converted into U.S. dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or by governmental authority to limit,
delay or prohibit the making of payments outside the United States.
B-2
E. The Notes have been duly authorized by the Company and, when
executed by the Company and completed and authenticated by the Trustee in
accordance with the Indenture and delivered and paid for as provided in the
Distribution Agreement, will have been duly issued under the Indenture and will
constitute valid and binding obligations of the Company entitled to the benefits
provided by the Indenture, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally or by general equitable
principles (regardless of whether enforcement is considered in a proceeding in
equity or at law), and except further as enforcement thereof may be limited by
requirements that a claim with respect to any Notes payable in a foreign or
composite currency (or a foreign or composite currency judgment in respect of
such claim) be converted into U.S. dollars at a rate of exchange prevailing on a
date determined pursuant to applicable law or by governmental authority to
limit, delay or prohibit the making of payments outside the United States.
F. The Registration Statement with respect to the Notes filed pursuant
to the Securities Act has become effective and remains in effect at this date,
and the Prospectus may lawfully be used for the purposes specified in the
Securities Act in connection with the offer for sale and the sale of Notes in
the manner therein specified.
G. The Registration Statement and the Prospectus (except that we
express no comment or belief with respect to any historical or pro forma
financial statements and schedules and other financial or statistical
information contained or incorporated by reference in the Registration Statement
or Prospectus) comply as to form in all material respects to the requirements of
the Securities Act, and to the applicable rules and regulations of the
Commission thereunder.
H. As to the statements relating to the Notes under DESCRIPTION OF DEBT
SECURITIES and ADDITIONAL TERMS OF SENIOR DEBT SECURITIES in the prospectus
initially filed as part of the Registration Statement, as supplemented by the
statements under DESCRIPTION OF THE NOTES in the prospectus supplement dated
____________ (the Prospectus Supplement), we are of the opinion that the
statements are accurate and do not omit any material fact required to be stated
therein or necessary to make such statements not misleading.
As to the statistical statements in the Registration Statement (which
includes statistical statements in the Incorporated Documents), we have relied
solely on the officers of the Company. We have not undertaken to determine
independently the accuracy or completeness of the statements contained or
incorporated by reference in the Registration Statement or in the Prospectus. We
accordingly assume no responsibility for the accuracy or completeness of the
statements made in the Registration Statement, except as stated above in the
preceding paragraph in regard to the captions set forth in such proceeding
paragraph. We note that the Incorporated Documents were prepared and filed by
the Company without our participation. We have, however, participated in
conferences with counsel for and representatives of the Company in connection
with the preparation of the Registration Statement, the Prospectus as it was
initially issued and as
B-3
has been supplemented or amended, and we have reviewed the Incorporated
Documents and such of the corporate records of the Company as we deemed
advisable. None of the foregoing disclosed to us any information that gives us
reason to believe that the Registration Statement contained on the date the
Registration Statement became effective, or the Prospectus contained on the date
it was issued or the date it was supplemented or amended, or that the
Registration Statement or the Prospectus (in all cases, excepting the financial
statements and schedules and other financial information contained or
incorporated therein by reference and any pro forma financial information (and
notes thereto) included or incorporated by reference therein, as to which we
express no belief) contains on the date hereof, any untrue statement of any
material fact or omitted or omits on the date hereof to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading. The foregoing assurance is provided on the basis that any statement
contained in an Incorporated Document shall be deemed not to be contained in the
Registration Statement or Prospectus if the statement has been modified or
superseded by any statement in a subsequently filed Incorporated Document or in
the Registration Statement or Prospectus prior to the date of the Distribution
Agreement.
We do not purport to express an opinion on any laws other than those of
the Commonwealth of Virginia, the State of Delaware, the State of New York and
the United States of America. This opinion may not be relied upon by, nor may
copies be delivered to, any person without our prior written consent.
Very truly yours,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP
B-4
EXHIBIT C
PROPOSED FORM OF OPINION
OF
MCGUIREWOODS LLP
DOMINION RESOURCES, INC.
U.S. $____________ Medium-Term Notes, Series A
May 22, 2002
____________ ____________
____________ ____________
____________ ____________
____________ ____________
____________ ____________
____________ ____________
____________ ____________
____________ ____________
____________ ____________
Dear Ladies and Gentlemen:
The arrangements for issuance of up to U.S. $___________ aggregate
principal amount of Medium-Term Notes, Series A due 9 months or more from the
date of issue (the Notes) of Dominion Resources, Inc. (the Company) under the
Company's Indenture, dated as of June 1, 2000, between the Company and JPMorgan
Chase Bank (formerly known as The Chase Manhattan Bank), as Trustee (the
Trustee), as previously supplemented, and as further supplemented by a ______
Supplemental Indenture, dated as of ___________ (such Indenture, as
supplemented, is referred to herein as the Indenture), pursuant to a
Distribution Agreement, dated ___________ by and between you and the Company
(the Distribution Agreement), have been taken under our supervision as counsel
for the Company. Terms not otherwise defined herein have the meanings set forth
in the Distribution Agreement.
We have examined originals, or copies certified to our satisfaction, of
such corporate records of the Company, indentures, agreements and other
instruments, certificates of public officials, certificates of officers and
representatives of the Company
C-1
and of the Trustee, and other documents, as we have deemed it necessary to
require as a basis for the opinions hereinafter expressed. As to various
questions of fact material to such opinions, we have, when relevant facts were
not independently established, relied upon certifications by officers of the
Company, the Trustee and other appropriate persons and statements contained in
the Registration Statement hereinafter mentioned. All legal proceedings taken as
of the date hereof in connection with the transactions contemplated by the
Distribution Agreement have been satisfactory to us.
On this basis, as of the date hereof, we are of the opinion that:
1. The Company has been duly incorporated and is validly existing as a
corporation under the laws of Virginia, and has the corporate power and
authority to own, lease and operate its properties and to conduct its business
as described in the Prospectus and to enter into and perform its obligations
under the Distribution Agreement; and the Company is duly qualified as a foreign
corporation to transact business and is in good standing in each other
jurisdiction in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except where the
failure to so qualify or to be in good standing would not result in a Material
Adverse Effect.
2. No filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any court or governmental authority or
agency, domestic or foreign (other than those required under the Public Utility
Holding Company Act of 1935, the Securities Act and the Rules and Regulations,
which have been obtained, or as may be required under the securities or blue sky
laws of the various states) is necessary or required in connection with the due
authorization, execution and delivery of the Distribution Agreement or the due
execution, delivery or performance of the Indenture by Dominion or for the
offering, issuance, sale or delivery of the Notes. An appropriate order or
orders of the Commission with respect to the sale of the Notes under the Public
Utility Holding Company Act of 1935 has been issued, and such order or orders
remains in effect at this date and constitutes valid and sufficient
authorization for the sale of the Notes as contemplated by the Distribution
Agreement.
3. The Distribution Agreement has been duly authorized by all necessary
corporate action and has been duly executed and delivered by the Company.
4. The Indenture has been duly authorized, executed and delivered by
the Company and has been duly qualified under the Trust Indenture Act and
constitutes a valid and binding obligation of the Company, except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights generally or
by general equitable principles (regardless of whether enforcement is considered
in a proceeding in equity or at law), and except further as enforcement thereof
may be limited by requirements that a claim with respect to any debt securities
issued under the Indenture that are payable in a foreign or composite currency
(or a foreign or composite currency judgment in respect of such claim) be
converted into U.S. dollars at a rate of exchange prevailing on a date
determined pursuant
C-2
to applicable law or by governmental authority to limit, delay or prohibit the
making of payments outside the United States.
5. The Notes have been duly authorized by the Company and, when duly
executed by the Company and completed and authenticated by the Trustee in
accordance with the Indenture and issued, delivered and paid for in accordance
with the Distribution Agreement, will have been duly issued under the Indenture
and will constitute valid and binding obligations of the Company entitled to the
benefits provided by the Indenture, except as enforcement thereof may be limited
by bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally or by general equitable
principles (regardless of whether enforcement is considered in a proceeding in
equity or at law), and except further as enforcement thereof may be limited by
requirements that a claim with respect to any Notes payable in a foreign or
composite currency (or a foreign or composite currency judgment in respect of
such claim) be converted into U.S. dollars at a rate of exchange prevailing on a
date determined pursuant to applicable law or by governmental authority to
limit, delay or prohibit the making of payments outside the United States.
6. The Registration Statement with respect to the Notes filed pursuant
to the Securities Act has become effective and remains in effect at this date,
and the Prospectus may lawfully be used for the purposes specified in the
Securities Act in connection with the offer for sale and the sale of the Notes
in the manner therein specified.
7. The Registration Statement and the Prospectus (except the financial
statements, any pro forma information and schedules contained or incorporated by
reference therein, as to which we express no opinion) appear on their face to be
appropriately responsive in all material respects to the requirements of the
Securities Act, and to the applicable rules and regulations of the Commission
thereunder.
8. We are of the opinion that the statements relating to the Notes
under DESCRIPTION OF DEBT SECURITIES and ADDITIONAL TERMS OF SENIOR DEBT
SECURITIES in the prospectus initially filed as part of the Registration
Statement, as all or any of them have been supplemented by the statements under
DESCRIPTION OF THE NOTES in the prospectus supplement dated ___________, are
substantially accurate and fair.
9. With regard to the discussion in the Prospectus Supplement under the
caption CERTAIN UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS, we are of the
opinion that under current United States federal income tax law, although the
discussion does not purport to discuss all possible United States federal income
tax consequences of the purchase, ownership and disposition of the Notes, such
discussion constitutes a fair and accurate summary of the matters discussed
therein in all material respects. In rendering the aforementioned tax opinion,
we have considered the current provisions of the Internal Revenue Code of 1986,
as amended, proposed and final Treasury regulations promulgated thereunder,
judicial decisions and Internal Revenue Service rulings, all of which are
subject to change, which changes may be retroactively
C-3
applied. A change in the authorities upon which our opinion is based could
affect our conclusions. There can be no assurance, moreover, that any of the
opinions expressed herein will be accepted by the Internal Revenue Service, or,
if challenged, by a court.
10. There are no actions, suits or proceedings pending or, to the best
of our knowledge, threatened, to which the Company or one of its subsidiaries is
a party or to which any of the Company's or any of its subsidiaries' properties
is subject, other than any proceedings described in the Prospectus and
proceedings which we believe are not likely to have a material adverse effect on
the power or ability of the Company to perform its obligations under the
Distribution Agreement or to consummate the transactions contemplated thereby or
by the Prospectus.
We have participated in conferences with officers and other
representatives of the Company and your representatives at which the contents of
the Registration Statement and the Prospectus were discussed, and we have
consulted with officers and other employees of the Company to inform them of the
disclosure requirements of the Securities Act. We have examined various reports,
records, contracts and other documents of the Company and orders and instruments
of public officials, which our investigation led us to deem pertinent. In
addition, we attended the due diligence meetings with representatives of the
Company and the closing at which the Company satisfied the conditions contained
in Section 7 of the Distribution Agreement. We have not, however, undertaken to
make any independent review of other records of the Company which our
investigation did not lead us to deem pertinent. As to the statistical
statements in the Registration Statement (which includes the Incorporated
Documents), we have relied solely on the officers of the Company. We accordingly
assume no responsibility for the accuracy or completeness of the statements made
in the Registration Statement, except as stated above. Such conferences,
consultation, examination and attendance disclosed to us no information with
respect to such other matters that gives us reason to believe that the
Registration Statement contained on the date the Registration Statement became
effective, or the Prospectus contained on the date it was issued, or that the
Registration Statement or the Prospectus (in each case, except with respect to
the financial statements and schedules and other financial information contained
or incorporated by reference in the Registration Statement or the Prospectus)
contains on the date hereof, any untrue statement of a material fact or omitted
on such date or omits on the date hereof to state a material fact required to be
stated therein or necessary to make the statements therein not misleading. The
foregoing assurance is provided on the basis that any statement contained in an
Incorporated Document shall be deemed not to be contained in the Registration
Statement or Prospectus if the statement has been modified or superseded by any
statement in a subsequently filed Incorporated Document or in the Registration
Statement or Prospectus prior to the date of the Purchase Agreement.
We do not purport to express an opinion on any laws other than those of
the Commonwealth of Virginia, the State of New York and the United States of
America. This opinion may not be relied upon by, nor may copies be delivered to,
any person without our prior written consent.
C-4
Yours very truly,
MCGUIREWOODS LLP
C-5
EXHIBIT D
DOMINION RESOURCES, INC.
ADMINISTRATIVE PROCEDURES
for Fixed Rate and Floating Rate Medium-Term Notes, Series A
(Dated as of ___________)
Medium-Term Notes Due Nine Months or More From Date of Issue (the
"Notes") are to be offered on a continuous basis by DOMINION RESOURCES, INC., a
Virginia corporation (the "Company"), to or through ___________, ___________,
___________, ___________, ___________, and ___________ (each, an "Agent" and,
collectively, the "Agents") pursuant to a Distribution Agreement, dated
___________ (the "Distribution Agreement"), by and among the Company and the
Agents. The Distribution Agreement provides for the sale of Notes by the Company
to one or more of the Agents as principal for resale to investors and other
purchasers, for the sale of Notes by the Company through one or more of the
Agents who solicit offers to purchase the Notes and receive a commission (as may
from time to time be agreed to by the Company and the related Agent or Agents)
and for the sale of Notes by the Company directly to investors.
Unless otherwise agreed by the related Agent or Agents and the Company,
Notes will be purchased by the related Agent or Agents as principal. Such
purchases will be made in accordance with terms agreed upon by the related Agent
or Agents and the Company (which terms shall be agreed upon orally, with written
confirmation prepared by the related Agent or Agents and mailed to the Company).
If agreed upon by any Agent or Agents and the Company, the Agent or Agents,
acting solely as agent or agents for the Company and not as principal, will use
best efforts to solicit offers to purchase the Notes. Only those provisions in
these Administrative Procedures that are applicable to the particular role to be
performed by the related Agent or Agents shall apply to the offer and sale of
the relevant Notes.
The Notes will be issued as a series of debt securities under an
Indenture, dated as of June 1, 2000, between the Company and JPMorgan Chase Bank
(formerly known as The Chase Manhattan Bank), as trustee (together with any
successor in such capacity, the "Trustee") as previously supplemented and as
further supplemented by a ______ Supplemental Indenture, dated as of ___________
(such Indenture as supplemented is referred to herein as the "Indenture"). The
Company has filed a Registration Statement with the Securities and Exchange
Commission (the "Commission") registering, among other securities, debt
securities (which includes the Notes) (the "Registration Statement", which term
shall include any additional registration statements filed in connection with
the Notes). The most recent base prospectus deemed part of the Registration
Statement, as supplemented with respect to the Notes, is herein referred to as
"Prospectus". The most recent supplement to the Prospectus setting forth the
purchase price, interest rate or formula, maturity date and other terms of the
Notes (as applicable) is herein referred to as the "Pricing Supplement".
D-1
The Notes will either be issued (a) in book-entry form and represented
by one or more fully registered Notes without coupons (each, a "Global Note")
delivered to the Trustee, as agent for The Depository Trust Company ("DTC"), and
recorded in the book-entry system maintained by DTC, or (b) in certificated form
(each, a "Certificated Note") delivered to the investor or other purchaser
thereof or a person designated by such investor or other purchaser.
General procedures relating to the issuance of all Notes are set forth
in Part I hereof. Additionally, Notes issued in book-entry form will be issued
in accordance with the procedures set forth in Part II hereof and Certificated
Notes will be issued in accordance with the procedures set forth in Part III
hereof. Capitalized terms used but not otherwise defined herein shall have the
meanings ascribed thereto in the Indenture or the Notes, as the case may be.
PART I: PROCEDURES OF GENERAL APPLICABILITY
Date of Issuance/
Authentication: Each Note will be dated as of the date of its
authentication by the Trustee. Each Note shall
also bear an original issue date (each, an
"Original Issue Date"). The Original Issue Date
shall remain the same for all Notes subsequently
issued upon transfer, exchange or substitution of
an original Note regardless of their dates of
authentication.
Maturities: Each Note will mature on a date nine months or
more from its Original Issue Date (the "Stated
Maturity Date") selected by the investor or other
purchaser and agreed to by the Company.
Registration: Unless otherwise provided in the applicable
Pricing Supplement, Notes will be issued only in
fully registered form.
Denominations: Unless otherwise provided in the applicable
Pricing Supplement, the Notes, except for Notes
denominated in a Specified Currency other than
U.S. dollars, shall be issued only in
denominations of $25 or $1,000, as specified in
the applicable Pricing Supplement, and any
integral multiple of such denominations in excess
thereof. Notes denominated in a Specified
Currency other than U.S. dollars will be issued
in equivalent denominations, as determined by
reference to the Market Exchange Rate on the
Business Day immediately preceding the date of
issuance unless otherwise specified in the
applicable Pricing Supplement.
D-2
Base Rates applicable
to Floating Rate
Notes: Unless otherwise provided in the applicable
Pricing Supplement, Floating Rate Notes will bear
interest at a rate or rates determined by
reference to the CD Rate, the CMT Rate, the
Commercial Paper Rate, the Federal Funds Rate,
LIBOR, the Prime Rate, the Treasury Rate, or such
other Base Rate or formula as may be set forth in
applicable Pricing Supplement, or by reference to
two or more such rates, as adjusted by the Spread
and/or Spread Multiplier, if any, applicable to
such Floating Rate Notes.
Redemption/Repayment: The Notes will be subject to redemption by the
Company in accordance with the terms of the
Notes, which will be fixed at the time of sale
and set forth in the applicable Pricing
Supplement. If no Initial Redemption Date is
indicated with respect to a Note, such Note will
not be redeemable prior to its Stated Maturity
Date.
The Notes will be subject to repayment at the
option of the Holders thereof in accordance with
the terms of the Notes, which will be fixed at
the time of sale and set forth in the applicable
Pricing Supplement. If no Optional Repayment Date
is indicated with respect to a Note, such Note
will not be repayable at the option of the Holder
prior to its Stated Maturity Date.
Calculation of
Interest: In case of Fixed Rate Notes, interest (including
payments for partial periods) will be calculated
and paid on the basis of a 360-day year of twelve
30-day months.
The interest rate on each Floating Rate Note will
be calculated by reference to the specified Base
Rate(s) plus or minus the applicable Spread, if
any, and/or multiplied by the applicable Spread
Multiplier, if any.
Unless otherwise provided in the applicable
Pricing Supplement, interest on each Floating
Rate Note will be calculated by multiplying its
principal amount by an accrued interest factor.
Such accrued interest factor is computed by
adding the interest factor calculated for each
day in the period for which accrued interest is
being accrued. Unless otherwise provided in the
applicable Pricing Supplement, the interest
factor for each such day is computed by dividing
the interest rate applicable to such day by 360
if the CD Rate, Commercial
D-3
Paper Rate, Federal Funds Rate, LIBOR (except for
LIBOR Notes denominated in pounds sterling) or
Prime Rate is an applicable Base Rate, by 365 in
the case of LIBOR Notes denominated in pounds
sterling if LIBOR is the applicable Base Rate, or
by the actual number of days in the year if the
CMT Rate or Treasury Rate is an applicable Base
Rate. As provided in the applicable Pricing
Supplement, the interest factor for Notes for
which the interest rate is calculated with
reference to two or more Base Rates will be
calculated in each period in the same manner as
if only the lowest, highest or average of the
applicable Base Rates applied.
Interest: General. Each Note will bear interest in
accordance with its terms. Unless otherwise
provided in the applicable Pricing Supplement,
interest on each Note will accrue from and
including the Original Issue Date of such Note
for the first interest period or from the most
recent Interest Payment Date (as defined below)
to which interest has been paid or duly provided
for all subsequent interest periods to but
excluding applicable Interest Payment Date or the
Stated Maturity Date or date of earlier
redemption or repayment, as the case may be (the
Stated Maturity Date or date of earlier
redemption or repayment is referred to herein as
the "Maturity Date" with respect to the principal
repayable on such date).
If an Interest Payment Date or the Maturity Date
with respect to any Fixed Rate Note falls on a
day that is not a Business Day (as defined
below), the required payment to be made on such
day need not be made on such day, but may be made
on the next succeeding Business Day with the same
force and effect as if made on such day, and no
interest shall accrue on such payment for the
period from and after such day to the next
succeeding Business Day. If an Interest Payment
Date other than the Maturity Date with respect to
any Floating Rate Note would otherwise fall on a
day that is not a Business Day, such Interest
Payment Date will be postponed to the next
succeeding Business Day, except that in the case
of a Note for which LIBOR is an applicable Base
Rate, if such Business Day falls in the next
succeeding calendar month, such Interest Payment
Date will be the immediately preceding Business
Day. If the Maturity Date with respect to any
Floating Rate Note falls on a day that is not a
Business Day, the required payment to be made on
such day need not be made on such day, but may be
made on the next succeeding Business Day with the
same force and effect as if made on such day, and
no interest shall accrue
D-4
on such payment for the period from and after the
Maturity Date to the next succeeding Business
Day.
Unless otherwise provided in the applicable
Pricing Supplement, "Business Day" means with
respect to any Note, any day, other than a
Saturday or Sunday, that is neither (a) a legal
holiday nor (b) a day on which banking
institutions are authorized or required by law,
regulation or executive order to close in New
York City; provided, however, that for Notes
denominated in a Specified Currency other than
United States dollars that day is also not a day
on which commercial banking institutions are
authorized or required by law, regulation or
executive order to close in the Principal
Financial Center of the country issuing the
Specified Currency (or for Notes denominated in
euros, that day is also a day on which the
Trans-European Automated Real-time Gross
Settlement Express Transfer System, commonly
referred to as "TARGET," is operating); provided,
further, that with respect to a LIBOR Note, the
day must also be a London Business Day.
"London Business Day" means any day on which
commercial banks are open for business (including
for dealings in deposits in the relevant Index
Currency) in London.
"Principal Financial Center" means as applicable,
the capital city of the country issuing the
Specified Currency; or the capital city of the
country to which the Index Currency relates;
provided, however, that the Principal Financial
Center will be New York City for United States
dollars, Sydney for Australian dollars, Toronto
for Canadian dollars, Johannesburg for South
African rand and Zurich for Swiss francs.
Regular Record Dates. Unless otherwise provided
in the applicable Pricing Supplement, the
"Regular Record Date" for a Note shall be the
close of business on the fifteenth calendar day
(whether or not a Business Day) preceding the
applicable Interest Payment Date.
Interest Payment Dates. Interest payments will be
made on each Interest Payment Date commencing
with the first Interest Payment Date following
the Original Issue Date; provided, however, the
first payment of interest on any Note originally
issued between a Regular Record Date and an
Interest Payment Date will occur on the Interest
Payment Date following the next succeeding
Regular Record Date.
D-5
Unless otherwise provided in the applicable
Pricing Supplement, interest payments on Fixed
Rate Notes will be made semiannually in arrears
on May 1 and November 1 of each year and on the
Maturity Date, while interest payments on
Floating Rate Notes will be made as specified in
the applicable Pricing Supplement.
Acceptance and
Rejection of Offers
from Solicitation
as Agents: If agreed upon by any Agent and the Company,
then such Agent acting solely as agent for the
Company and not as principal will solicit
purchases of the Notes. Each Agent will
communicate to the Company, orally or in writing,
each reasonable offer to purchase Notes solicited
by such Agent on an agency basis, other than
those offers rejected by such Agent. Each Agent
has the right, in its discretion reasonably
exercised, to reject any proposed purchase of
Notes, as a whole or in part, and any such
rejection shall not be a breach of such Agent's
agreement contained in the Distribution
Agreement. The Company has the sole right to
accept or reject any proposed purchase of Notes,
in whole or in part, and any such rejection shall
not a breach of the Company's agreement contained
in the Distribution Agreement. Each Agent has
agreed to make best efforts to assist the Company
in obtaining performance by each purchaser whose
offer to purchase Notes has been solicited by
such Agent and accepted by the Company.
Preparation of
Pricing Supplement: If any offer to purchase a Note is accepted by
the Company, the Company will promptly prepare a
Pricing Supplement reflecting the terms of such
Note. Information to be included in the Pricing
Supplement shall include:
1. the name of the Company;
2. the title of the Notes;
3. the date of the Pricing Supplement and the
date of the Prospectus to which the Pricing
Supplement relates;
4. the name of the Offering Agent (as defined
below);
D-6
5. whether such Notes are being sold to the
Offering Agent as principal or to an investor
or other purchaser through the Offering Agent
acting as agent for the Company;
6. with respect to Notes sold to the Offering
Agent as principal, whether such Notes will
be resold by the Offering Agent to investors
and other purchasers at (i) a fixed public
offering price of a specified percentage of
their principal amount or (ii) at varying
prices related to prevailing market prices at
the time of resale to be determined by the
Offering Agent;
7. with respect to Notes sold to an investor or
other purchaser through the Offering Agent
acting as agent for the Company, whether such
Notes will be sold at (i) 100% of their
principal amount or (ii) a specified
percentage of their principal amount;
8. the Offering Agent's discount or commission;
9. the net proceeds to the Company;
10. the Principal Amount, Specified Currency,
Original Issue Date, Stated Maturity Date,
Interest Payment Date(s), Authorized
Denomination, Initial Redemption Date, if
any, Initial Redemption Percentage, if any,
Annual Redemption Percentage Reduction, if
any, Optional Repayment Date(s), if any,
Exchange Rate Agent, if any, Default Rate, if
any, and, in the case of Fixed Rate Notes,
the Interest Rate, and whether such Fixed
Rate Note is an Original Issue Discount Note
(and, if so, the Issue Price), and, in the
case of Floating Rate Notes, the Interest
Category, the Base Rate or Bases, the Day
Count Convention, Index Maturity (if
applicable), Initial Interest Rate, if any,
Maximum Interest Rate, if any, Minimum
Interest Rate, if any, Initial Interest Reset
Date, Interest Reset Dates, Spread and/or
Spread Multiplier, if any, and Calculation
Agent; and
11. any other additional provisions of the Notes
material to investors or other purchasers of
the Notes not otherwise specified in the
Prospectus.
The Company shall use its best efforts to send
such Pricing Supplement by email, facsimile or
overnight express (for delivery by the close of
business on the applicable trade date, but in no
event later than 11:00 a.m. New York City time,
on
D-7
the Business Day following the applicable trade
date) to the Agent which made or presented the
offer to purchase the applicable Note (in such
capacity, the "Offering Agent") and the Trustee
at the following applicable address: if to:
___________
___________
___________
___________
___________
Telephone:
Facsimile:
___________
___________
___________
___________
___________
Telephone:
Facsimile:
___________
___________
___________
___________
___________
Telephone:
Facsimile:
___________
___________
___________
___________
___________
Telephone:
Facsimile:
D-8
___________
___________
___________
___________
___________
Telephone:
Facsimile:
___________
___________
___________
___________
___________
Telephone:
Facsimile:
and if to the Trustee, to:
___________
___________
___________
and to:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: F. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇., Esquire
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
In each instance that a Pricing Supplement is
prepared, the Offering Agent will provide a copy
of such Pricing Supplement to each investor or
purchaser of the relevant Notes or its agent.
Pursuant to Rule 434 ("Rule 434") of the
Securities Act of 1933, as amended, the Pricing
Supplement may be delivered separately from the
Prospectus. Outdated Pricing Supplements (other
than those retained for files) will be destroyed.
Settlement: The receipt of immediately available funds by the
Company in payment for a Note and the
authentication and delivery of such Note shall,
with respect to such Note, constitute
"settlement". Offers accepted by the Company will
be settled in three Business Days, or at such
time as the purchaser, the applicable Agent and
the Company shall agree, pursuant to the
timetable
D-9
for settlement set forth in Parts II and III
hereof under "Settlement Procedure Timetable"
with respect to Global Notes and Certificated
Notes, respectively (each such date fixed for
settlement is hereinafter referred to as a
"Settlement Date"). If procedures A and B of the
applicable Settlement Procedures with respect to
a particular offer are not completed on or before
the time set forth under the applicable
"Settlement Procedures Timetable", such offer
shall not be settled until the Business Day
following the completion of settlement procedures
A and B or such later date as the purchaser and
the Company shall agree.
The foregoing settlement procedures may be
modified with respect to any purchase of Notes by
an Agent as principal if so agreed by the Company
and such Agent.
Procedure for Changing
Rates or Other
Variable Terms: When a decision has been reached to change the
interest rate or any other variable term on any
Notes being sold by the Company, the Company will
promptly advise the Agents and the Trustee by
facsimile transmission and the Agents will
forthwith suspend solicitation of offers to
purchase such Notes. The Agents will telephone:
the Company with recommendations as to the
changed interest rates or other variable terms.
At such time as the Company notifies the Agents
and the Trustee of the new interest rates or
other variable terms, the Agents may resume
solicitation of offers to purchase such Notes.
Until such time, only "indications of interest"
may be recorded. Immediately after acceptance by
the Company of an offer to purchase Notes at a
new interest rate or new variable term, the
Company, the Offering Agent and the Trustee shall
follow the procedures set forth under the
applicable "Settlement Procedures".
Suspension of Solicitation;
Amendment or
Supplement: The Company may instruct the Agents to suspend
solicitation of offers to purchase Notes at any
time. Upon receipt of such instructions, the
Agents will forthwith suspend solicitation of
offers to purchase from the Company until such
time as the Company has advised the Agents that
solicitation of offers to purchase may be
resumed. If the Company decides to amend or
supplement the Registration Statement or the
Prospectus (other than to establish or change
interest rates or formulas, maturities, prices or
other similar variable terms with respect to
D-10
the Notes), it will promptly advise the Agents
and will furnish the Agents and their counsel
with copies of the proposed amendment or
supplement. Copies of such amendment or
supplement will be delivered or mailed to the
Agents, their counsel and the Trustee in
quantities which such parties may reasonably
request at the following respective addresses: if
to
___________
___________
___________
___________
___________
Telephone:
Facsimile:
___________
___________
___________
___________
___________
Telephone:
Facsimile:
___________
___________
___________
___________
___________
Telephone:
Facsimile:
___________
___________
___________
___________
___________
Telephone:
Facsimile:
___________
___________
___________
___________
___________
Telephone:
Facsimile:
___________
___________
___________
___________
D-11
___________
Telephone:
Facsimile:
and if to the Trustee, to:
___________
___________
___________
___________
___________
Telephone:
Facsimile:
and to:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: F. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇., Esquire
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
In the event that at the time the solicitation of
offers to purchase from the Company is suspended
(other than to establish or change interest rates
or formulas, maturities, prices or other similar
variable terms with respect to the Notes) there
shall be any offers to purchase Notes that have
been accepted by the Company which have not been
settled, the Company will promptly advise the
Offering Agent and the Trustee whether such
offers may be settled and whether copies of the
Prospectus as theretofore amended and/or
supplemented as in effect at the time of the
suspension may be delivered in connection with
the settlement of such offers. The Company will
have the sole responsibility for such decision
and for any arrangements which may be made in the
event that the Company determines that such
offers may not be settled or that copies of such
Prospectus may not be so delivered.
Delivery of Prospectus
and applicable
Pricing Supplement: A copy of the most recent Prospectus and the
applicable Pricing Supplement, which pursuant to
Rule 434 may be delivered separately from the
Prospectus, must accompany or precede the earlier
of (a) the written confirmation of a sale sent to
an investor or other purchaser or its agent and
(b) the delivery of Notes to an investor or other
purchaser or its agent.
D-12
Authenticity of
Signatures: The Agents will have no obligation or liability
to the Company or the Trustee in respect of the
authenticity of the signature of any officer,
employee or agent of the Company or the Trustee
on any Note.
Documents Incorporated
by Reference: The Company shall supply the Agents with an
adequate supply of all documents incorporated by
reference in the Registration Statement and the
Prospectus.
D-13
PART II: PROCEDURES FOR NOTES ISSUED IN BOOK-ENTRY FORM
In connection with the qualification of Notes issued in book-entry form
for eligibility in the book-entry system maintained by DTC, JPMorgan Chase Bank
(formerly The Chase Manhattan Bank) ("JPMorgan") will perform the custodial,
document control and administrative functions described below, in accordance
with its respective obligations under a Letter of Representations from the
Company and JPMorgan to DTC, dated __________ 2002, and a Certificate Agreement,
dated May 26, 1989, between JPMorgan and DTC, as amended (the "Certificate
Agreement"), and its obligations as a participant in DTC, including DTC's
Same-Day Funds Settlement System ("SDFS").
Issuance: All Fixed Rate Notes issued in book-entry form
having the same Original Issue Date, Specified
Currency, Interest Rate, Default Rate, Interest
Payment Dates, redemption and/or repayment terms,
if any, and Stated Maturity Date (collectively,
the "Fixed Rate Terms") will be represented
initially by a single Global Note; and all
Floating Rate Notes issued in book-entry form
having the same Original Issue Date, Specified
Currency, Interest Category, formula for the
calculation of interest (including the Base Rate
or Bases, which may be the CD Rate, the CMT Rate,
the Commercial Paper Rate, the Federal Funds
Rate, LIBOR, the Prime Rate or the Treasury Rate
or any other Base Rate or formula, and Spread
and/or Spread Multiplier, if any), Day Count
Convention, Initial Interest Rate, Default Rate,
Index Maturity (if applicable), Minimum Interest
Rate, if any, Maximum Interest Rate, if any,
redemption and/or repayment terms, if any,
Interest Payment Dates, Initial Interest Reset
Date, Interest Reset Dates and Stated Maturity
Date (collectively, the "Floating Rate Terms")
will be represented initially by a single Global
Note.
For other variable terms with respect to the
Fixed Rate Notes and Floating Rate Notes, see the
Prospectus and the applicable Pricing Supplement.
Owners of beneficial interests in Global Notes
will be entitled to physical delivery of
Certificated Notes equal in principal amount to
their respective beneficial interests only upon
certain limited circumstances described in the
Prospectus.
Identification: The Company has arranged with the CUSIP Service
Bureau of Standard & Poor's Corporation (the
"CUSIP Service Bureau") for the reservation of
one series of CUSIP numbers, which series
consists of approximately 900 CUSIP numbers which
D-14
have been reserved for and relating to Global
Notes and the Company has delivered to each of
JPMorgan and DTC such list of such CUSIP numbers.
The Company will assign CUSIP numbers to Global
Notes as described below under Settlement
Procedure B. DTC will notify the CUSIP Service
Bureau periodically of the CUSIP numbers that the
Company has assigned to Global Notes. JPMorgan
will notify the Company at any time when fewer
than 100 of the reserved CUSIP numbers remain
unassigned to Global Notes, and, if it deems
necessary, the Company will reserve and obtain
additional CUSIP numbers for assignment to Global
Notes. Upon obtaining such additional CUSIP
numbers, the Company will deliver a list of such
additional numbers to JPMorgan and DTC. Notes
issued in book-entry form in excess of
$500,000,000 (or the equivalent thereof in one or
more foreign or composite currencies) aggregate
principal amount and otherwise required to be
represented by the same Global Note will instead
be represented by two or more Global Notes which
shall all be assigned the same CUSIP number.
Registration: Unless otherwise specified by DTC, each Global
Note will be registered in the name of Cede &
Co., as nominee for DTC, on the register
maintained by JPMorgan under the Indenture. The
beneficial owner of a Note issued in book-entry
form (i.e., an owner of a beneficial interest in
a Global Note) (or one or more indirect
participants in DTC designated by such owner)
will designate one or more participants in DTC
(with respect to such Note issued in book-entry
form, the "Participants") to act as agent for
such beneficial owner in connection with the
book-entry system maintained by DTC, and DTC will
record in book-entry form, in accordance with
instructions provided by such Participants, a
credit balance with respect to such Note issued
in book-entry form in the account of such
Participants. The ownership interest of such
beneficial owner in such Note issued in
book-entry form will be recorded through the
records of such Participants or through the
separate records of such Participants and one or
more indirect participants in DTC.
Transfers: Transfers of beneficial ownership interests in a
Global Note will be accomplished by book entries
made by DTC and, in turn, by Participants (and in
certain cases, one or more indirect participants
in DTC) acting on behalf of beneficial
transferors and transferees of such Global Note.
Exchanges: JPMorgan may deliver to DTC and the CUSIP Service
Bureau at any time a written notice specifying
(a) the CUSIP numbers
D-15
of two or more Global Notes outstanding on such
date that represent Global Notes having the same
Fixed Rate Terms or Floating Rate Terms, as the
case may be (other than Original Issue Dates),
and for which interest has been paid to the same
date; (b) a date, occurring at least 30 days
after such written notice is delivered and at
least 30 days before the next Interest Payment
Date for the related Notes issued in book-entry
form, on which such Global Notes shall be
exchanged for a single replacement Global Note;
and (c) a new CUSIP number, obtained from the
Company, to be assigned to such replacement
Global Note. Upon receipt of such a notice, DTC
will send to its Participants (including
JPMorgan) a written reorganization notice to the
effect that such exchange will occur on such
date. Prior to the specified exchange date,
JPMorgan will deliver to the CUSIP Service Bureau
written notice setting forth such exchange date
and the new CUSIP number and stating that, as of
such exchange date, the CUSIP numbers of the
Global Notes to be exchanged will no longer be
valid. On the specified exchange date, JPMorgan
will exchange such Global Notes for a single
Global Note bearing the new CUSIP number and the
CUSIP numbers of the exchanged Notes will, in
accordance with CUSIP Service Bureau procedures,
be canceled and not immediately reassigned.
Notwithstanding the foregoing, if the Global
Notes to be exchanged exceed $500,000,000 (or the
equivalent thereof in one or more foreign or
composite currencies) in aggregate principal
amount, one replacement Note will be
authenticated and issued to represent each
$500,000,000 (or the equivalent thereof in one or
more foreign or composite currencies) in
aggregate principal amount of the exchanged
Global Notes and an additional Global Note or
Notes will be authenticated and issued to
represent any remaining principal amount of such
Global Notes (See "Denominations" below).
Denominations: Unless otherwise provided in the applicable
Pricing Supplement, Notes issued in book-entry
form will be issued in denominations of $25 or
$1,000 and integral multiples of such
denominations in excess thereof. Global Notes
will not be denominated in excess of $500,000,000
(or the equivalent thereof in one or more foreign
or composite currencies) aggregate principal
amount. If one or more Notes are issued in
book-entry form in excess of $500,000,000 (or the
equivalent thereof in one or more foreign or
composite currencies) aggregate principal amount
and would, but for the preceding sentence, be
represented by a single Global Note, then one
Global Note will be issued to represent each
$500,000,000 (or
D-16
the equivalent thereof in one or more foreign or
composite currencies) in aggregate principal
amount of such Notes issued in book-entry form
and an additional Global Note or Notes will be
issued to represent any remaining aggregate
principal amount of such Note or Notes issued in
book-entry form. In such a case, each of the
Global Notes representing Notes issued in
book-entry form shall be assigned the same CUSIP
number.
Payments of Principal
and Interest: Payments of Interest Only. Promptly aftereach
Regular Record Date, JPMorgan will deliver to the
Company and DTC a written notice specifying by
CUSIP number the amount of interest to be paid on
each Global Note on the following Interest
Payment Date (other than an Interest Payment Date
coinciding with the Maturity Date) and the total
of such amounts, to the extent then
ascertainable. DTC will confirm the amount
payable on each Global Note on such Interest
Payment Date by reference to the daily bond
reports published by Standard & Poor's
Corporation. On such Interest Payment Date, the
Company will pay to JPMorgan in immediately
available funds an amount sufficient to pay the
interest then due and owing on the Global Notes,
and upon receipt of such funds from the Company,
JPMorgan in turn will pay to DTC such total
amount of interest due on such Global Notes
(other than on the Maturity Date) which is
payable in U.S. dollars, at the times and in the
manner set forth below under "Manner of Payment".
JPMorgan shall make payment of that amount of
interest due and owing on any Global Notes that
Participants have elected to receive in foreign
or composite currencies directly to such
Participants.
Notice of Interest Rates. Promptly after each
Interest Determination Date or Calculation Date,
as the case may be, for Floating Rate Notes
issued in book-entry form, JPMorgan will notify
each of ▇▇▇▇▇'▇ Investors Service, Inc. and
Standard & Poor's Corporation of the interest
rates determined as of such Interest
Determination Date.
Payments at Maturity. On or about the first
Business Day of each month, JPMorgan will deliver
to the Company and DTC a written list of
principal, premium, if any, and interest to be
paid on each Global Note maturing or otherwise
becoming due in the following month, to the
extent then ascertainable. JPMorgan, the Company
and DTC will confirm the amounts of such
principal, premium, if any, and interest payments
with respect to each such Global Note on or about
the fifth Business
D-17
Day preceding the Maturity Date of such Global
Note. On the Maturity Date, the Company will pay
to JPMorgan in immediately available funds an
amount sufficient to make the required payments,
and upon receipt of such funds JPMorgan in turn
will pay to DTC the principal amount of Global
Notes, together with premium, if any, and
interest due on the Maturity Date, which are
payable in U.S. dollars, at the times and in the
manner set forth below under "Manner of Payment".
JPMorgan shall make payment of the principal,
premium, if any, and interest to be paid on the
Maturity Date of each Global Note that
Participants have elected to receive in foreign
or composite currencies directly to such
Participants. Promptly after (i) payment to DTC
of the principal, premium, if any, and interest
due on the Maturity Date of such Global Note
which are payable in U.S. dollars and (ii)
payment of the principal, premium, if any, and
interest due on the Maturity Date of such Global
Note to those Participants who have elected to
receive such payments in foreign or composite
currencies, the Trustee will cancel such Global
Note and deliver it to the Company with an
appropriate debit advice. On the first Business
Day of each month, the Trustee will deliver to
the Company a written statement indicating the
total principal amount of outstanding Global
Notes as of the close of business on the
immediately preceding Business Day.
Manner of Payment. The total amount of any
principal, premium, if any, and interest due on
Global Notes on any Interest Payment Date or the
Maturity Date, as the case may be, which is
payable in U.S. dollars shall be paid by the
Company to JPMorgan in funds available for use by
JPMorgan no later than 10:00 a.m., New York City
time, on such date. The Company will make such
payment on such Global Notes to an account
specified by JPMorgan. Upon receipt of such
funds, JPMorgan will pay by separate wire
transfer (using Fedwire message entry
instructions in a form previously specified by
DTC) to an account at the Federal Reserve Bank of
New York previously specified by DTC, in funds
available for immediate use by DTC, each payment
in U.S. dollars of principal, premium, if any,
and interest due on Global Notes on such date.
Thereafter on such date, DTC will pay, in
accordance with its SDFS operating procedures
then in effect, such amounts in funds available
for immediate use to the respective Participants
in whose names the beneficial interests in such
Global Notes are recorded in the book-entry
system maintained by DTC. Neither the Company nor
JPMorgan shall have any responsibility or
liability for the payment in U.S. dollars by
D-18
DTC of the principal of, or premium, if any, or
interest on, the Global Notes. JPMorgan shall
make all payments of principal, premium, if any,
and interest on each Global Note that
Participants have elected to receive in foreign
or composite currencies directly to such
Participants.
Withholding Taxes. The amount of any taxes
required under applicable law to be withheld from
any interest payment on a Global Note will be
determined and withheld by the Participant,
indirect participant in DTC or other Person
responsible for forwarding payments and materials
directly to the beneficial owner of such Global
Note.
Settlement
Procedures: Settlement Procedures with regard to each Note in
book-entry form sold by an Agent, as agent of the
Company, or purchased by an Agent, as principal,
will be as follows:
A. The Offering Agent will advise the Company by
telephone:, confirmed by facsimile, of the
following settlement information:
1. Principal amount, Authorized
Denomination, and Specified Currency.
2. Exchange Rate Agent, if any.
3. (a) Fixed Rate Notes:
(i) Interest Rate.
(ii) Interest Payment Dates.
(iii) Whether such Note is
being issued with
Original Issue Discount
and, if so, the terms
thereof.
(b) Floating Rate Notes:
(i) Interest Category.
(ii) Base Rate(s).
(iii) Initial Interest Rate.
D-19
(iv) Spread and/or Spread
Multiplier, if any.
(v) Initial Interest Reset
Date or Interest Reset
Dates.
(vi) Interest Payment Dates.
(vii) Index Maturity, if any.
(viii) Maximum and/or Minimum
Interest Rates, if any.
(ix) Day Count Convention.
(x) Calculation Agent.
4. Price to public, if any, of such Note
(or whether such Note is being offered
at varying prices relating to
prevailing market prices at time of
resale as determined by the Offering
Agent).
5. Trade Date.
6. Settlement Date (Original Issue Date).
7. Stated Maturity Date.
8. Redemption provisions, if any.
9. Repayment provisions, if any.
10. Default Rate, if any.
11. Net proceeds to the Company.
12. The Offering Agent's discount or
commission.
13. Whether such Note is being sold to the
Offering Agent as principal or to an
investor or other purchaser through the
Offering Agent acting as agent for the
Company.
14. Such other information specified with
respect to such Note (whether by
Addendum or otherwise).
D-20
B. The Company will assign a CUSIP number to
the Global Note representing such Note and
then advise the Trustee by facsimile
transmission or other electronic
transmission (promptly confirmed in writing)
of the above settlement information received
from the Offering Agent, such CUSIP number
and the name of the Offering Agent. The
Company will also advise the Offering Agent
of the CUSIP number assigned to the Global
Note.
C. JPMorgan will communicate to DTC and the
Offering Agent through DTC's Participant
Terminal System a pending deposit message
specifying the following settlement
information:
1. The information set forth in the
Settlement Procedure A.
2. Identification numbers of the
participant accounts maintained by DTC
on behalf of JPMorgan and the Offering
Agent.
3. Identification of the Global Note as a
Fixed Rate Global Note or Floating Rate
Global Note.
4. Initial Interest Payment Date for such
Note, number of days by which such date
succeeds the related record date for
DTC purposes (or, in the case of
Floating Rate Notes which reset daily
or weekly, the date five calendar days
preceding the Interest Payment Date)
and, if then calculable, the amount of
interest payable on such Interest
Payment Date (which amount shall have
been confirmed by JPMorgan).
5. CUSIP number of the Global Note
representing such Note.
6. Whether such Global Note represents any
other Notes issued or to be issued in
book-entry form.
DTC will arrange for each pending
deposit message described above to be
transmitted to Standard & Poor's
Corporation, which will use the information
in the message to include certain terms of
the related Global Note in the appropriate
daily bond report published by Standard &
Poor's Corporation.
D-21
D. The Trustee will complete and authenticate
the Global Note representing such Note.
E. DTC will credit such Note to the participant
account of JPMorgan maintained by DTC.
F. JPMorgan will enter an SDFS deliver order
through DTC's Participant Terminal System
instructing DTC (i) to debit such Note to
JPMorgan's participant account and credit
such Note to the participant account of the
Offering Agent maintained by DTC and (ii) to
debit the settlement account of the Offering
Agent and credit the settlement account of
JPMorgan maintained by DTC, in an amount
equal to the price of such Note less such
Offering Agent's discount or underwriting
commission, as applicable. Any entry of such
a deliver order shall be deemed to
constitute a representation and warranty by
the Trustee to DTC that (i) the Global Note
representing such Note has been issued and
authenticated and (ii) JPMorgan is holding
such Global Note pursuant to the Certificate
Agreement.
G. In the case of Notes in book-entry form sold
through the Offering Agent, as agent, the
Offering Agent will enter an SDFS deliver
order through DTC's Participant Terminal
System instructing DTC (i) to debit such
Note to the Offering Agent's participant
account and credit such Note to the
participant account of the Participants
maintained by DTC and (ii) to debit the
settlement accounts of such Participants and
credit the settlement account of the
Offering Agent maintained by DTC in an
amount equal to the initial public offering
price of such Note.
H. Transfers of funds in accordance with SDFS
deliver orders described in Settlement
Procedures F and G will be settled in
accordance with SDFS operating procedures in
effect on the Settlement Date.
I. Upon receipt, JPMorgan will pay the Company,
by wire transfer of immediately available
funds to an account specified by the Company
to JPMorgan from time to time, the amount
transferred to JPMorgan in accordance with
Settlement Procedure F.
D-22
J. JPMorgan will send a copy of the Global Note
by first class mail to the Company together
with a statement setting forth the principal
amount of Notes Outstanding as of the
related Settlement Date after giving effect
to such transaction and all other offers to
purchase Notes of which the Company has
advised JPMorgan but which have not yet been
settled.
K. If such Note was sold through the Offering
Agent, as agent, the Offering Agent will
confirm the purchase of such Note to the
investor or other purchaser either by
transmitting to the Participant with respect
to such Note a confirmation order through
DTC's Participant Terminal System or by
mailing a written confirmation to such
investor or other purchaser.
Settlement Procedures
Timetable: For offers to purchase Notes accepted by the
Company, Settlement Procedures A through K set
forth above shall be completed as soon as
possible following the trade but not later than
the respective times (New York City time) set
forth below:
SETTLEMENT
PROCEDURE TIME
A 11:00 a.m. on the trade date or
within one hour following the
trade
B 12:00 noon on the trade date or
within one hour following the
trade
C No later than the close of
business on the trade date
D 9:00 a.m. on Settlement Date
E 10:00 a.m. on Settlement Date
F-G No later than 2:00 p.m. on
Settlement Date
H 4:00 p.m. on Settlement Date
I-K 5:00 p.m. on Settlement Date
D-23
Settlement Procedure H is subject to extension in
accordance with any extension of Fedwire closing
deadlines and in the other events specified in
the SDFS operating procedures in effect on the
Settlement Date.
If settlement of a Note issued in book-entry form
is rescheduled or canceled, JPMorgan will deliver
to DTC, through DTC's Participant Terminal
System, a cancellation message to such effect by
no later than 5:00 p.m., New York City time, on
the Business Day immediately preceding the
scheduled Settlement Date.
Failure to Settle: If JPMorgan fails to enter an SDFS deliver order
with respect to a Note issued in book-entry form
pursuant to Settlement Procedure F, JPMorgan may
deliver to DTC, through DTC's Participant
Terminal System, as soon as practicable a
withdrawal message instructing DTC to debit such
Note to the participant account of JPMorgan
maintained at DTC. DTC will process the
withdrawal message, provided that such
participant account contains a principal amount
of the Global Note representing such Note that is
at least equal to the principal amount to be
debited. If withdrawal messages are processed
with respect to all the Notes represented by a
Global Note, the Trustee will ▇▇▇▇ such Global
Note "canceled", make appropriate entries in its
records and send certification of cancellation of
such canceled Global Note to the Company. The
CUSIP number assigned to such Global Note shall,
in accordance with CUSIP Service Bureau
procedures, be canceled and not immediately
reassigned. If withdrawal messages are processed
with respect to a portion of the Notes
represented by a Global Note, the Trustee will
exchange such Global Note for two Global Notes,
one of which shall represent the Global Notes for
which withdrawal messages are processed and shall
be canceled immediately after issuance and the
other of which shall represent the other Notes
previously represented by the surrendered Global
Note and shall bear the CUSIP number of the
surrendered Global Note.
In the case of any Note in book-entry form sold
through the Offering Agent, as agent, if the
purchase price for any such Note is not timely
paid to the Participants with respect thereto by
the beneficial investor or other purchaser
thereof (or a person, including an indirect
participant in DTC, acting on behalf of such
investor or other purchaser), such Participants
and, in turn, the related Offering Agent may
enter SDFS
D-24
deliver orders through DTC's Participant Terminal
System reversing the orders entered pursuant to
Settlement Procedures F and G, respectively.
Thereafter, the Trustee will deliver the
withdrawal message and take the related actions
described in the preceding paragraph. If such
failure shall have occurred for any reason other
than default by the applicable Offering Agent to
perform its obligations hereunder or under the
Distribution Agreement, the Company will
reimburse such Offering Agent on an equitable
basis for its reasonable loss of the use of funds
during the period when the funds were credited to
the account of the Company.
Notwithstanding the foregoing, upon any failure
to settle with respect to a Note in book-entry
form, DTC may take any actions in accordance with
its SDFS operating procedures then in effect. In
the event of a failure to settle with respect to
a Note that was to have been represented by a
Global Note also representing other Notes, the
Trustee will provide, in accordance with
Settlement Procedure D, for the authentication
and issuance of a Global Note representing such
remaining Notes and will make appropriate entries
in its records.
D-25
PART III: PROCEDURES FOR CERTIFICATED NOTES
Denominations: Unless otherwise provided in the applicable
Pricing Supplement, the Certificated Notes will
be issued in denominations of $25 or $1,000 and
integral multiples of such denominations in
excess thereof.
Payments of Principal,
Premium, if any,
and Interest: Upon presentment and delivery of the Certificated
Note, the Trustee upon receipt of immediately
available funds from the Company will pay the
principal of, premium, if any, and interest on,
each Certificated Note on the Maturity Date in
immediately available funds. All interest
payments on a Certificated Note, other than
interest due on the Maturity Date, will be made
by check mailed to the address of the person
entitled thereto as such address shall appear in
the Security Register at the applicable Regular
Record Date; provided, however, that Holders
shall be entitled to receive such interest
payments by wire transfer of immediately
available funds if appropriate wire transfer
instructions have been received in writing by the
Trustee not less than 15 calendar days prior to
the applicable Interest Payment Date.
The Trustee will provide monthly to the Company a
list of the principal, premium, if any, and
interest to be paid on Certificated Notes
maturing in the next succeeding month. The
Trustee will be responsible for withholding taxes
on interest paid as required by applicable law.
Certificated Notes presented to the Trustee on
the Maturity Date for payment will be canceled by
the Trustee. All canceled Certificated Notes held
by the Trustee shall be disposed of in accordance
with its customary procedures, and the Trustee
shall furnish to the Company a certificate with
respect to such disposition.
Settlement
Procedures: Settlement Procedures with regard to each
Certificated Note purchased by an Agent, as
principal, or through an Agent, as agent, shall
be as follows:
D-26
A. The Offering Agent will advise the Company
by telephone of the following Settlement
information with regard to each Certificated
Note:
1. Exact name in which the Certificated
Note(s) is to be registered (the
"Registered Owner").
2. Exact address or addresses of the
Registered Owner for delivery, notices
and payments of principal, premium, if
any, and interest.
3. Taxpayer identification number of the
Registered Owner.
4. Principal amount, Authorized
Denomination and Specified Currency.
5. Exchange Rate Agent, if any.
6. (a) Fixed Rate Notes:
(i) Interest Rate.
(ii) Interest Payment Dates.
(iii) Whether such Note is being
issued with Original Issue
Discount and, if so, the
terms thereof.
(b) Floating Rate Notes:
(i) Interest Category.
(ii) Base Rate or Bases.
(iii) Initial Interest Rate.
(iv) Spread and/or Spread
Multiplier, if any.
(v) Initial Interest Reset
Date and Interest Reset
Dates.
(vi) Interest Payment Dates.
D-27
(vii) Index Maturity, if any.
(viii) Maximum and/or Minimum
Interest Rates, if any.
(ix) Day Count Convention.
(x) Calculation Agent.
7. Price to public of such Certificated
Note (or whether such Note is being
offered at varying prices relating to
prevailing market prices at time of
resale as determined by the Offering
Agent).
8. Trade Date.
9. Settlement Date (Original Issue Date).
10. Stated Maturity Date.
11. Redemption provisions, if any.
12. Repayment provisions, if any.
13. Default Rate, if any.
14. Net proceeds to the Company.
15. The Offering Agent's discount or
commission.
16. Whether such Note is being sold to the
Offering Agent as principal or to an
investor or other purchaser through the
Offering Agent acting as agent for the
Company.
17. Such other information specified with
respect to such Note (whether by
Addendum or otherwise).
B. After receiving such settlement information
from the Offering Agent, the Company will
advise the Trustee of the above settlement
information by facsimile transmission
confirmed by telephone (and promptly
confirmed in writing as well). The Company
will cause the Trustee to issue,
authenticate and deliver the Certificated
Note.
D-28
C. The Trustee will complete the Certificated
Note in the form approved by the Company and
the Offering Agent, and will make three
copies thereof (herein called "Stub 1",
"Stub 2" and "Stub 3"):
1. Certificated Note with the Offering
Agent's confirmation, if traded on a
principal basis, or the Offering
Agent's customer confirmation, if
traded on an agency basis.
2. Stub 1 for Trustee.
3. Stub 2 for Offering Agent.
4. Stub 3 for the Company.
D. With respect to each trade, the Trustee will
deliver the Certificated Note and Stub 2
thereof to the Offering Agent at the
following applicable address: if to
___________
___________
___________
___________
___________
Telephone:
Facsimile:
___________
___________
___________
___________
___________
Telephone:
Facsimile:
D-29
___________
___________
___________
___________
___________
Telephone:
Facsimile:
___________
___________
___________
___________
___________
Telephone:
Facsimile:
___________
___________
___________
___________
___________
Telephone:
Facsimile:
and the Trustee will keep Stub 1. The
Offering Agent will acknowledge receipt of
the Certificated Note through a broker's
receipt and will keep Stub 2. Delivery of
the Certificated Note will be made only
against such acknowledgment of receipt. Upon
determination that the Certificated Note has
been authorized, delivered and completed as
aforementioned, the Offering Agent will wire
the net proceeds of the Certificated Note
after deduction of its applicable commission
to the Company pursuant to standard wire
instructions given by the Company.
E. In the case of a Certificated Note sold
through the Offering Agent, as agent, the
Offering Agent will deliver such
Certificated Note (with the confirmation) to
the purchaser against payment in immediately
available funds.
F. The Trustee will send Stub 3 to the Company.
Settlement
Procedures
Timetable: For offers to purchase Certificated Notes
accepted by the Company, Settlement Procedures A
through F set forth above
D-30
shall be completed as soon as possible following
the trade but not later than the respective times
(New York City time) set forth below:
Settlement
Procedure Time
--------- ----
A 11:00 a.m. on the trade date or
within one hour following the
trade
B 12:00 noon on the trade date or
within one hour following the
trade
C-D 2:15 p.m. on Settlement Date
E 3:00 p.m. on Settlement Date
F 5:00 p.m. on Settlement Date
Failure to Settle: In the case of Certificated Notes sold through
the Offering Agent, as agent, if an investor or
other purchaser of a Certificated Note from the
Company shall either fail to accept delivery of
or make payment for such Certificated Note on the
date fixed for settlement, the Offering Agent
will forthwith notify the Trustee and the Company
by telephone, confirmed in writing, and return
such Certificated Note to the Trustee.
The Trustee, upon receipt of such Certificated
Note from the Offering Agent, will immediately
advise the Company and the Company will promptly
arrange to credit the account of the Offering
Agent in an amount of immediately available funds
equal to the amount previously paid to the
Company by such Offering Agent in settlement for
such Certificated Note. Such credits will be made
on the Settlement Date if possible, and in any
event not later than the Business Day following
the Settlement Date; provided that the Company
has received notice on the same day. If such
failure shall have occurred for any reason other
than failure by such Offering Agent to perform
its obligations hereunder or under the
Distribution Agreement, the Company will
reimburse such Offering Agent on an equitable
basis for its reasonable loss of the use of funds
during the period when the funds were credited to
the account of the Company. Immediately upon
receipt of the Certificated Note in respect of
which the failure occurred, the Trustee will
cancel and dispose of such Certificated Note in
accordance with its customary procedures, make
appropriate entries in its
D-31
records to reflect the fact that such
Certificated Note was never issued, and
accordingly notify in writing the Company.
D-32