Exhibit 1
U.S. $1,500,000,000
CONSOLIDATED NATURAL GAS COMPANY
Medium-Term Notes
Series A
DISTRIBUTION AGREEMENT
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May 22, 2002
Barclays Capital Inc. ▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Brothers Inc. ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ 4 World Financial ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
The undersigned, Consolidated Natural Gas Company (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 Barclays Capital Inc., ▇.▇. ▇▇▇▇▇▇ Securities Inc., ▇▇▇▇▇▇
Brothers Inc., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, ▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. Incorporated, and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc., 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 Barclays Capital Inc., ▇.▇.
▇▇▇▇▇▇ Securities Inc., ▇▇▇▇▇▇ Brothers Inc., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ &
▇▇▇▇▇ Incorporated, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney
Inc., 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
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U.S. $1,500,000,000* 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 April 1, 2001, between the Company and the Bank One Trust
Company, National Association, as Trustee (the Trustee), as previously
supplemented, and as further supplemented by a Fourth Supplemental Indenture,
dated as of May 1, 2002 (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
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and warrants to you that:
(a) The registration statement on Form S-3 (Reg. No. 333-85580) for
the registration of debt securities, including the Notes, junior
subordinated debentures and trust preferred securities and related
guarantee 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
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* 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").
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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 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
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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 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
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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 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 May 22, 2002, and each holder of Notes will be entitled to the
benefits of the Indenture.
(k) The Peoples Natural Gas Company, The East Ohio Gas Company,
Dominion Exploration & Production, Inc., Dominion Oklahoma Texas
Exploration & Production, Inc. and Dominion Transmission, Inc. 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, 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.
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(a) Solicitations as Agent. On the basis of the representations and
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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.
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The Company reserves the right, in its sole discretion, to
suspend solicitation of offers to purchase the Notes in any Specified
Currency, for any 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
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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
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* Or the equivalent of U.S. $25 or U.S. $1,000, as the case may be, in the
Specified Currency.
6
you and the Company) is herein referred to as a "Terms Agreement". Your
commitment to purchase Notes as principal, whether pursuant to a Terms
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.
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4. Administrative Procedures. Procedural details relating to the
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issuance and delivery of Notes, the solicitation of offers to purchase by
others, and purchase by you as 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
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delivered on the "Closing Date" pursuant to Section 7 hereof shall be delivered
at The ▇▇▇▇▇ Center, Richmond, Virginia, at 10:00 a.m., Richmond, Virginia time,
on May 22, 2002, 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:
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(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
8
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 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,
9
certificates, opinions and letters as you may request in connection
with the preparation and filing of such amendment or supplement.
(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.
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(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.
7. Conditions of Your Obligations. Your obligations as agent of
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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
11
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 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
12
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 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.
13
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 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
14
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 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
15
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 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
16
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 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
17
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.
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
18
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 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, Consolidated Natural Gas Company, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (facsimile: (▇▇▇) ▇▇▇-▇▇▇▇).
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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,
CONSOLIDATED NATURAL GAS COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Title: Assistant Treasurer
--------------------------
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20
The foregoing agreement is
hereby confirmed and accepted,
as of the date first above written.
BARCLAYS CAPITAL INC.
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------
Authorized Signatory
Name: ▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------
Title: Managing Director
----------------------------
Addresses for Notices:
Barclays Capital Inc.
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇ ▇▇▇▇▇▇▇▇
Managing Director
Telephone: (▇▇▇)▇▇▇-▇▇▇▇
Facsimile: (▇▇▇)▇▇▇-▇▇▇▇
with a copy to:
Barclays Capital Inc.
Attn: ▇▇▇▇▇ ▇▇▇, ▇▇/▇▇/ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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.
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
Authorized Signatory
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------
Title: Managing Director
----------------------------
Addresses for Notices:
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Transaction Execution Group
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.
▇▇▇▇▇▇ BROTHERS INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------
Authorized Signatory
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------
Title: Sr. Vice President
----------------------------
Address for Notices:
▇▇▇▇▇▇ Brothers Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Fixed Income Syndicate- Medium Term Notes Desk
Telephone: (▇▇▇)▇▇▇-▇▇▇▇
Facsimile: (▇▇▇)▇▇▇-▇▇▇▇
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23
The foregoing agreement is
hereby confirmed and accepted,
as of the date first above written.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
Authorized Signatory
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------
Title: Authorized Signatory
----------------------------
Address for Notices:
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
4 World Financial ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Global Transaction Management Group
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.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ III
-------------------------------
Authorized Signatory
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-----------------------------
Title: Executive Director
----------------------------
Addresses for Notices:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇- ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Manager - Continuously Offered Products
Telephone: (▇▇▇)▇▇▇-▇▇▇▇
Facsimile: (▇▇▇)▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇, Investment Banking Information Center
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.
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------
Authorized Signatory
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------
Title: Managing Director
----------------------------
Address for Notices:
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
Medium-Term Note Department
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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
CONSOLIDATED NATURAL GAS COMPANY
MEDIUM-TERM NOTES, SERIES A
FORM OF TERMS AGREEMENT
(Date)
Consolidated Natural Gas Company
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
Re: Distribution Agreement dated May 22, 2002
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:
CONSOLIDATED NATURAL GAS COMPANY
By: ______________________________________
Name:_____________________________________
Title:____________________________________
A-2
EXHIBIT B
PROPOSED FORM OF OPINION
OF
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP
CONSOLIDATED NATURAL GAS COMPANY
U.S. $1,500,000,000 Medium-Term Notes, Series A
May 22, 2002
Barclays Capital Inc. ▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Brothers Inc. ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ 4 World Financial ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Ladies and Gentlemen:
We have acted as counsel for you in connection with arrangements for
the issuance by Consolidated Natural Gas Company (the Company) of up to U.S.
$1,500,000,000 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 April 1, 2001, between the Company and Bank One
Trust Company, National Association, as Trustee (the Trustee), as previously
supplemented, and as further supplemented by a Fourth Supplemental Indenture,
dated as of May 1, 2002 (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 May 22, 2002, 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.
B-1
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 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 Delaware 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)
B-2
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.
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 May 22, 2002 (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
B-3
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 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
CONSOLIDATED NATURAL GAS COMPANY
U.S. $1,500,000,000 Medium-Term Notes, Series A
May 22, 2002
Barclays Capital Inc. ▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Brothers Inc. ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ 4 World Financial ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Ladies and Gentlemen:
The arrangements for issuance of up to U.S. $1,500,000,000 aggregate
principal amount of Medium-Term Notes, Series A due 9 months or more from the
date of issue (the Notes) of Consolidated Natural Gas Company (the Company)
under the Company's Indenture, dated as of April 1, 2001, between the Company
and Bank One Trust Company, National Association, as Trustee (the Trustee), as
previously supplemented, and as further supplemented by a Fourth Supplemental
Indenture, dated as of May 1, 2002 (such Indenture, as supplemented, is referred
to herein as the Indenture), pursuant to a Distribution Agreement, dated May 22,
2002, 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.
C-1
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 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 Delaware, 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
C-2
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.
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 May 22, 2002, 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
C-3
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 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 Delaware, the State of New York and the
United
C-4
States of America. This opinion may not be relied upon by, nor may copies be
delivered to, any person without our prior written consent.
Yours very truly,
MCGUIREWOODS LLP
C-5
EXHIBIT D
CONSOLIDATED NATURAL GAS COMPANY
ADMINISTRATIVE PROCEDURES
for Fixed Rate and Floating Rate Medium-Term Notes, Series A
(Dated as of May 22, 2002)
Medium-Term Notes Due Nine Months or More From Date of Issue (the
"Notes") are to be offered on a continuous basis by CONSOLIDATED NATURAL GAS
COMPANY, a Delaware corporation (the "Company"), to or through Barclays Capital
Inc., ▇.▇. ▇▇▇▇▇▇ Securities Inc., ▇▇▇▇▇▇ Brothers Inc., ▇▇▇▇▇▇▇ Lynch, Pierce,
▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, and ▇▇▇▇▇▇▇
▇▇▇▇▇ Barney Inc. (each, an "Agent" and, collectively, the "Agents") pursuant to
a Distribution Agreement, dated May 22, 2002 (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 April 1, 2001, between the Company and Bank One Trust
Company, National Association, as trustee (together with any successor in such
capacity, the "Trustee") as previously supplemented and as further supplemented
by a Fourth Supplemental Indenture, dated as of May 1, 2002 (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 theapplicable
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:
Barclays, to:
Barclays Capital Inc.
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇, 10/th/ Floor
Telephone: (▇▇▇)▇▇▇-▇▇▇▇
Facsimile: (▇▇▇)▇▇▇-▇▇▇▇
JPMorgan, to:
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Medium-Term Note Desk
Telephone: (▇▇▇)▇▇▇-▇▇▇▇
Facsimile: (▇▇▇)▇▇▇-▇▇▇▇
▇▇▇▇▇▇ Brothers Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Medium Term Note Desk
Telephone: (▇▇▇)▇▇▇-▇▇▇▇
Facsimile: (▇▇▇)▇▇▇-▇▇▇▇
With a copy to:
ADP Prospectus Services
For ▇▇▇▇▇▇ Brothers Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Client Services Desk
Facsimile: (▇▇▇)▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, to:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ ▇▇▇▇▇ Production Technologies
▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Prospectus Operations/▇▇▇▇▇
▇▇▇▇▇▇
Telephone: (▇▇▇)▇▇▇-▇▇▇▇
Facsimile: (▇▇▇)▇▇▇-▇▇▇▇/6547
Email: ▇▇▇▇▇▇▇▇@▇▇▇.▇▇.▇▇.▇▇▇
D-8
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Medium-Term Note Trading Desk
Telephone: (▇▇▇)▇▇▇-▇▇▇▇
Facsimile: (▇▇▇)▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney, to:
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
Attn: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Brooklyn Army Terminal
▇▇▇ ▇▇/▇▇/ ▇▇▇▇▇▇, ▇/▇▇/ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇)▇▇▇-▇▇▇▇
Facsimile: (▇▇▇)▇▇▇-▇▇▇▇
and if to the Trustee, to:
Bank One Trust Company, National
Association
▇▇▇ ▇▇▇▇ ▇▇/▇▇/ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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 for settlement set forth
in Parts II and III hereof under
"Settlement Procedure Timetable" with
respect to Global Notes and
D-9
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 the Notes), it will
promptly advise the Agents and will
furnish the Agents and their counsel
with copies of the proposed
D-10
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
Barclays, to:
Barclays Capital Inc.
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇, 10/th/ Floor
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
JPMorgan, to:
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Transaction Execution Group
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ Brothers, to:
▇▇▇▇▇▇ Brothers Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Medium Term Note Desk
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, to:
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
4 World Financial ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Medium-Term Note Trading Desk
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
D-11
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney, to:
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
Medium-Term Note Department
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
and if to the Trustee, to:
Bank One Trust Company, National Association
▇▇▇ ▇▇▇▇ ▇▇/▇▇/ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Institutional Trust Services
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
D-12
to an investor or other purchaser or its
agent and (b) the delivery of Notes to
an investor or other purchaser or its
agent.
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, Bank One Trust Company,
National Association ("Bank One") 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 Bank One to
DTC, dated May 22, 2002, and a Certificate Agreement, dated May 26, 1989,
between Bank One 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 Bank One 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. Bank One 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 Bank One and DTC. Notes
issued in book-entry form in excess of
$400,000,000 (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 Bank One
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: Bank One 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
Bank One) a written reorganization
notice to the effect that such exchange
will occur on such date. Prior to the
specified exchange date, Bank One 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,
Bank One 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
$400,000,000 (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 $400,000,000 (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 $400,000,000
(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 $400,000,000 (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 $400,000,000 (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
-------------------------
after each Regular Record Date, Bank One
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 Bank One 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, Bank One 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". Bank One 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, Bank One 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, Bank
One 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. Bank One,
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 Day
D-17
preceding the Maturity Date of such
Global Note. On the Maturity Date, the
Company will pay to Bank One in
immediately available funds an amount
sufficient to make the required
payments, and upon receipt of such funds
Bank One 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". Bank One
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 Bank One in funds
available for use by Bank One 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 Bank One. Upon
receipt of such funds, Bank One 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 Bank One 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.
Bank One 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. Bank One 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 Bank One 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 Bank One).
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 Bank One
maintained by DTC.
F. Bank One will enter an SDFS
deliver order through DTC's
Participant Terminal System
instructing DTC (i) to debit such
Note to Bank One'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
Bank One 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) Bank One
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, Bank One will pay
the Company, by wire transfer of
immediately available funds to an
account specified by the Company
to Bank One from time to time,
the amount transferred to Bank
One in accordance with Settlement
Procedure F.
D-22
J. Bank One 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 Bank One 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, Bank One 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 Bank One fails to enter an SDFS
deliver order with respect to a Note
issued in book-entry form pursuant to
Settlement Procedure F, Bank One 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 Bank One
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:
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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.
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(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.
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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
Barclays, to:
Bank of New York
1 Wall Street, 3/rd/ Floor
Window B
New York, New York 10005
Acct: BARCAP
Acct #: 902378
JPMorgan, to:
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ Brothers, to:
▇▇▇▇▇▇ Brothers Inc.
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Medium Term Note Desk
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇, to:
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇▇▇ ▇▇▇▇▇ Money Markets Clearance
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇ Window
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, to:
Bank of New York
Dealer Clearance Department
1 Wall Street, 3/rd/ Floor
Window 3B
New York, New York 10005
Attn: For the Account of
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney, to:
New York Window
The Depository Trust Company
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇/▇▇/ ▇▇▇▇▇
For the Account of SSB
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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.
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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 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
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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 records
to reflect the fact that such Certificated Note was
never issued, and accordingly notify in writing the
Company.
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