Exhibit 1.2
U.S. $3,000,000,000
DOMINION RESOURCES, INC.
Medium-Term Notes
Series B
DISTRIBUTION AGREEMENT
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[date]
[names and addresses of Agents]
The undersigned, Dominion Resources, Inc. (the Company), hereby confirms
its agreement with each of you with respect to the issuance and sale by the
Company of the below-described Notes.
Subject to the terms and conditions stated herein, the Company (i) hereby
appoints each of [names of Agents], 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 [names of Agents],
and any other agent named by the Company who becomes a party to this Agreement,
individually, and, as the context requires, to all of such firms collectively.
1. Description of Notes. The Company proposes to issue and sell up to U.S.
$3,000,000,000* aggregate principal amount of its Medium-Term Notes, Series B
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
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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").
issued pursuant to the Company's Indenture, dated as of June 1, 2000, between
the Company and JPMorgan Chase Bank (formerly known as The Chase Manhattan
Bank), as Trustee (the Trustee), as previously supplemented, and as further
supplemented by a Fourteenth Supplemental Indenture, dated as of [date] (such
Indenture, as supplemented, is referred to herein as the Indenture). All
capitalized terms not defined herein have the meanings ascribed to them in the
Indenture.
2. Representations and Warranties of the Company. The Company represents
and warrants to you that:
(a) The registration statement on Form S-3 (Reg. No. 333- ,) for
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the registration of debt securities, including the Notes, junior
subordinated debentures, trust preferred securities and related guarantee,
common stock, preferred stock, stock purchase contracts and stock purchase
units under the Securities Act of 1933, as amended (the Securities Act),
heretofore filed with the Securities and Exchange Commission (the
Commission), has been declared effective. The registration statement,
including all exhibits thereto, (and any further registration statements
which may be filed by the Company for the purpose of registering additional
Notes and in connection with which this Agreement is included as an
exhibit) and the prospectus constituting a part of such registration
statement, and any prospectus supplement relating to the Notes, as from
time to time amended or supplemented by the filing of documents pursuant to
the Securities Act, the Securities Exchange Act of 1934, as amended (the
Exchange Act) or otherwise, are referred to herein as the "Registration
Statement" and the "Prospectus", respectively. As used herein, the terms
"Registration Statement" and "Prospectus" include all documents or portions
thereof (including any Current Report on Form 8-K) incorporated therein by
reference, and shall include any documents or portions thereof (including
any Current Report on Form 8-K) filed after the date of such Registration
Statement or Prospectus and incorporated therein by reference from the date
of filing of such incorporated documents (collectively, the Incorporated
Documents).
(b) No order suspending the effectiveness of the Registration
Statement or otherwise preventing or suspending the use of the Prospectus
has been issued by the Commission and is in effect and no proceedings for
that purpose are pending before or, to the knowledge of the Company,
threatened by the Commission. The Registration Statement and the Prospectus
comply in all material respects with the provisions of the Securities Act,
the Exchange Act, the 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
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the Registration Statement or the Prospectus made in reliance upon and in
conformity with information furnished in writing to the Company by you or
on behalf of any of you for use in the Registration Statement or Prospectus
or to that part of the Registration Statement constituting the Trustee's
Statement of Eligibility and Qualification under the Trust Indenture Act;
and provided, further, that the foregoing representations and warranties
are given on the basis that any statement contained in an Incorporated
Document shall be deemed not to be contained in the Registration Statement
or Prospectus if such statement has been modified or superseded by any
statement in a subsequently filed Incorporated Document or in the
Registration Statement or Prospectus.
(c) The Indenture qualifies under, and conforms in all material
respects to the requirements of, the Trust Indenture Act.
(d) Deloitte & Touche LLP, who have audited certain of the Company's
financial statements filed with the Commission and incorporated by
reference in the Registration Statement, are independent public accountants
as required by the Securities Act and the Rules and Regulations relating to
the Securities Act.
(e) Except as reflected in, or contemplated by, the Registration
Statement and Prospectus (exclusive of any amendments or supplements after
the date hereof), since the respective most recent dates as of which
information is given in the Registration Statement and Prospectus
(exclusive of any amendments or supplements after the date hereof), there
has not been any material adverse change or event which would result in a
material adverse effect on the condition of the Company and its
subsidiaries taken as a whole, financial or otherwise (a Material Adverse
Effect). The Company and its subsidiaries taken as a whole has no material
contingent liability which is not disclosed in the Registration Statement
and the Prospectus.
(f) The Company has taken all corporate action necessary to be taken
by it to authorize the execution by it of this Agreement and the
performance by it of all obligations on its part to be performed hereunder;
and the consummation of the transactions contemplated in this Agreement and
in the Registration Statement (including the issuance and sale of the Notes
and the use of the proceeds from the sale of the Notes as described in the
Prospectus under the caption "Use of Proceeds") and compliance by the
Company with its obligations under this 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
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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 0000 Xxx)
in effect at the time of such issuance, in which case the Company will
issue only an amount of Notes that is authorized by the order or orders of
the Commission under the 1935 Act then in effect.
(g) The Notes, upon issuance thereof, will conform in all respects to
the terms of the relevant order or orders of the Commission pursuant to the
1935 Act then in effect with respect to the Notes.
(h) This Agreement has been duly authorized, executed and delivered by
the Company.
(i) The Indenture has been duly authorized, executed and delivered by
the Company and is a valid and legally binding agreement of the Company,
enforceable against the Company in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement
of creditors' rights generally or by general equitable principles
(regardless of whether enforcement is considered in a proceeding in equity
or at law), and except further as enforcement thereof may be limited by
requirements that a claim with respect to any debt securities issued under
the Indenture that are payable in a foreign or composite currency (or a
foreign or composite currency judgment in respect of such claim) be
converted into U.S. dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or by governmental authority to
limit, delay or prohibit the making of payments outside the United States.
(j) The Notes have been duly authorized by the Company for offer,
sale, issuance and delivery pursuant to this Agreement and, when issued,
authenticated 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
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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 4.20 and
4.21 to the Registration Statement and each holder of Notes will be
entitled to the benefits of the Indenture.
(k) Consolidated Natural Gas Company, Dominion Exploration &
Production, Inc., Dominion Energy, Inc., Dominion Transmission, Inc. and
Virginia Electric and Power Company are the only Significant Subsidiaries
of the Company as such term is defined in Rule 1-02 of Regulation S-X. All
of the issued and outstanding capital stock of each Significant Subsidiary
has been duly authorized and validly issued, is fully paid and
nonassessable, and, with the exception of the outstanding preferred stock
of Virginia Electric and Power Company which is owned by third parties, the
capital stock of each Significant Subsidiary is owned by the Company,
directly or through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, claim, encumbrance or equitable right.
(l) The Company is not, and, after giving effect to the offering and
sale of the Notes and the application of the proceeds thereof as described
in the Prospectus, will not be, an "investment company" or a company
"controlled" by an "investment company" which is required to be registered
under the Investment Company Act of 1940, as amended.
3. Solicitations as Agent; Purchases as Principal.
(a) Solicitations as Agent. On the basis of the representations and
warranties herein contained, but subject to the terms and conditions herein
set forth, each of you agree, as agent of the Company, to use your best
efforts to solicit offers to purchase the Notes upon the terms and
conditions set forth in the Prospectus.
The Company reserves the right, in its sole discretion, to suspend
solicitation of offers to purchase the Notes in any Specified Currency, for
any 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
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defined below)) equal to the applicable percentage of the aggregate
principal amount of each Note sold as set forth in Schedule A attached
hereto.
Unless otherwise agreed to, as agent, you are authorized to solicit
orders for the Notes at the principal amount thereof only in the
denominations specified in the applicable pricing supplement (which will be
either U.S. $25* or U.S. $1,000* and integral multiples of such
denominations in excess thereof) at a purchase price equal to 100% of the
principal amount thereof, unless otherwise specified in a supplement to the
Prospectus. You shall communicate to the Company, orally or in writing,
each offer to purchase Notes received by you as agent, other than those
rejected by you. The Company shall have the sole right to accept offers to
purchase Notes and may reject any such offer in whole or in part. You shall
have the right, in your discretion reasonably exercised, to reject any
offer received by you to purchase the Notes, in whole or in part, and any
such rejection shall not be deemed a breach of your agreement contained
herein.
No Note which the Company has agreed to sell pursuant to this
Agreement shall be deemed to have been purchased and paid for, or sold, by
the Company until such Note shall have been delivered to the purchaser
thereof against payment by such purchaser.
The "Exchange Rate" on a given date for a Specified Currency other
than U.S. dollars means the noon dollar buying rate in New York City on
such date for cable transfers for the Specified Currency as certified for
customs purposes (or if not so certified, as otherwise determined) by the
Federal Reserve Bank of New York.
(b) Purchases as Principal. Each sale of Notes to you as principal
shall be made in accordance with the terms of this Agreement and a separate
agreement which will provide for the sale of such Notes to, and the
purchase and reoffering thereof by, you. Each such separate agreement
(which may be oral or written, and which may be substantially in the form
of Exhibit A hereto or which may take the form of an exchange of any
standard form of written telecommunication between you and the Company) is
herein referred to as a "Terms Agreement". Your commitment to purchase
Notes as principal, whether pursuant to a Terms 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
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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.
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you. Each purchase of Notes, unless otherwise agreed, shall be at a
discount from the principal amount of each such Note equivalent to the
applicable commission set forth in Schedule A hereto. You may utilize a
selling or dealer group in connection with the resale of the Notes
purchased by you as principal.
If the Company and two or more Agents enter into an agreement pursuant
to which such Agents agree to purchase Notes from the Company as principal
and one or more of such Agents shall fail at the Settlement Date to
purchase the Notes which it or they are obligated to purchase (the
"Defaulted Notes"), then the nondefaulting Agents shall have the right,
within 24 hours thereafter, to make arrangements for one of them or one or
more other Agents or underwriters to purchase all, but not less than all,
of the Defaulted Notes in such amounts as may be agreed upon and upon the
terms herein set forth; provided, however, that if such arrangements shall
not have been completed within such 24-hour period, then:
(1) if the aggregate principal amount of Defaulted Notes does not
exceed 10% of the aggregate principal amount of Notes to be so purchased by
all of such Agents on the Settlement Date, the nondefaulting Agents shall
be obligated, severally and not jointly, to purchase the full amount
thereof in the proportions that their respective initial underwriting
obligations bear to the underwriting obligations of all nondefaulting
Agents; or
(2) if the aggregate principal amount of Defaulted Notes exceeds 10%
of the aggregate principal amount of Notes to be so purchased by all of
such Agents on the Settlement Date, such agreement shall terminate without
liability on the part of any nondefaulting Agent.
No action taken pursuant to this paragraph shall relieve any
defaulting Agent from liability in respect of its default. In the event of
any such default which does not result in a termination of such agreement,
either the nondefaulting Agents or the Company shall have the right to
postpone the Settlement Date for a period not exceeding seven days in order
to effect any required changes in the Registration Statement or the
Prospectus or in any other documents or arrangements.
4. Administrative Procedures. Procedural details relating to the issuance
and delivery of Notes, the solicitation of offers to purchase by others, and
purchase by you as principal, of Notes, and the payment in each case therefor,
shall be agreed upon between the Company and each of you, as applicable (the
Administrative Procedures), and shall be furnished to the Trustee. Each of you
and the Company agree to perform, and the Company agrees to cause the Trustee to
perform, the respective duties and obligations substantially as provided to be
performed by each in the Administrative Procedures, attached hereto as Exhibit
D, as amended from time to time.
5. Time and Place of Closing. The documents required to be delivered on the
"Closing Date" pursuant to Section 7 hereof shall be delivered at the offices of
McGuireWoods LLP, 000 X. Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx, at 10:00 a.m.,
Richmond,
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Virginia time, on [date], or at such other time and/or place as you and the
Company may agree upon in writing, the time and date of such delivery being
herein called the "Closing Date".
6. Covenants of the Company. The Company agrees that:
(a) On or prior to the Closing Date, the Company will deliver to you
conformed copies of the Registration Statement as originally filed and of
all amendments or supplements thereto, including any post-effective
amendment (in each case including all exhibits filed therewith and
including copies of each consent and certificate included therein or filed
as an exhibit thereto, except exhibits incorporated by reference unless
specifically requested). After the Closing Date, the Company will deliver
to you as many copies of the Registration Statement and Prospectus and of
all amendments thereto (in each case without exhibits) as you may
reasonably request for the purposes contemplated by the Securities Act or
the Exchange Act.
(b) As soon as the Company is advised thereof, it will advise you
orally of: (i) the issuance of any stop order under the Securities Act with
respect to the Registration Statement, or the institution of any
proceedings therefor of which the Company shall have received notice, and
(ii) any change in the rating assigned by any "nationally recognized
statistical rating organization" (as that term is defined by the Commission
for purposes of Rule 436(g)(2) under the Securities Act) to any debt
securities (including the Notes) of the Company, or any notification from
such an organization of any intended or potential downgrading or of any
review for a possible change with possible negative implications in its
ratings of such securities. The Company will use its best efforts to
prevent the issuance of any stop order and to secure the prompt removal
thereof, if issued.
(c) The Company will pay all expenses in connection with (i) the
preparation and filing by it of the Registration Statement and Prospectus,
(ii) the preparation, issuance and delivery of the Notes, (iii) any fees
and expenses of the Trustee and (iv) the printing and delivery to you in
accordance with this Agreement of copies of the Registration Statement and
Prospectus (each as originally filed and as subsequently amended or
supplemented). The Company also will pay all taxes, if any, on the issuance
of the Notes. In addition, the Company will pay the reasonable fees and
disbursements of your counsel, Xxxxxxxx Xxxxxxx 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.
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(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 Xxxxxxxx Xxxxxxx LLP.
Notwithstanding any other provision of this Section 6(d), if before the
earlier of: (i) the expiration of thirty (30) days after the Prospectus has
been amended or (ii) the distribution of any Notes you may own as principal
has been completed, an event described above in this Section 6(d) occurs,
the Company will, at its own expense, forthwith prepare and cause to be
filed promptly with the Commission an amendment or supplement to the
Registration Statement or Prospectus, as then amended or supplemented,
satisfactory in all respects to you; will supply such amended or
supplemented Prospectus to you in such quantities as you may reasonably
request; and will furnish to you pursuant to Sections 7(c), 7(d) and 7(h)
such documents, certificates, opinions and letters as you may request in
connection with the preparation and filing of such amendment or supplement.
(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
9
the Notes) and will afford you a reasonable opportunity to comment on any
such proposed amendment or supplement.
(f) The Company will make generally available to its security holders,
as soon as it is practicable to do so, but not later than 90 days after the
close of the period covered thereby, an earnings statement of the Company
(which need not be audited, but which will comply with the provisions of
Rule 158 under the Securities Act), covering each 12-month period
beginning, in each case, not later than the first day of the Company's
fiscal quarter next following the "effective date" of the Registration
Statement (as defined in such Rule 158) with respect to each sale of Notes.
(g) The Company will use its best efforts promptly to do and perform
all things to be done and performed by it hereunder prior to the Closing
Date and to satisfy all conditions precedent to the delivery by it of the
Notes.
(h) The Company will furnish such proper information as may be
lawfully required and otherwise cooperate in qualifying the Notes for offer
and sale under the securities or blue-sky laws of such states as you may
designate; provided, however, that the Company shall not be required in any
state to qualify as a foreign corporation, or to file a general consent to
service of process, or to submit to any requirements that it deems unduly
burdensome.
(i) If required pursuant to the terms of a Terms Agreement, between
the dates of any Terms Agreement and the settlement date with respect to
such Terms Agreement, the Company will not, without your prior written
consent, offer, sell, contract to sell or otherwise dispose of any debt
securities of the Company in a public offering which are substantially
similar to the Notes.
(j) If the Company enters into any amendment to this Agreement, then
such amendment shall be entered into by each of you; provided, however,
that this Agreement may be terminated in accordance with Sections 7 or 12
herein as to any one of you without being terminated as to the others of
you.
(k) If the Company adds a new agent with respect to the Notes, then
such agent shall enter into an agreement substantially similar to this
Agreement, as such may be amended from time to time.
7. Conditions of Your Obligations. Your obligations as agent of the Company
to initiate solicitations of offers to purchase Notes and to continue such
solicitations, as the case may be, and your obligations to purchase Notes as
principal pursuant to any Terms Agreement or otherwise, shall be subject to the
continuing accuracy of the representations and warranties on the part of the
Company contained herein, to the accuracy of the statements of the Company's
officers made in any certificate furnished pursuant to the provisions hereof, to
the performance and observance
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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 Xxxxxxxx
Xxxxxxx 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) 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 (B) an amendment to the
Company's annual report on Form 10-K filed solely pursuant to General
Instruction A to Form 11-K) and (C) with respect to any filings on Form 8-K
that are incorporated by reference in the Registration Statement and the
Prospectus, compliance with this Section 7(c) shall be required if the Form
8-K only contains information responsive to Items 1,2,3, or 4) and (iii)
each time, if so indicated in the applicable Terms Agreement or otherwise,
the Company sells Notes to you as principal, the legal opinion of
McGuireWoods LLP or other counsel satisfactory to you in your reasonable
judgment, dated the Closing Date, the date of such amendment, supplement,
incorporation by reference or settlement date, relating to a sale of Notes
pursuant to a Terms Agreement or otherwise, as the case may be,
substantially in the form attached hereto as Exhibit C. In lieu of such
opinion to be delivered upon such amendment, supplement, incorporation by
reference or 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).
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(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) 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 (B) with respect to any filings on Form
8-K that are incorporated by reference in the Registration Statement and
the Prospectus, compliance with this Section 7(d) shall be required if the
Form 8-K only contains information responsive to Items 1,2,3, or 4) and
(iii) each time, if so indicated in the applicable Terms Agreement or
otherwise, the Company sells Notes to you as principal, from Deloitte &
Touche LLP, or another independent public accounting firm satisfactory to
you, a letter addressed to you, dated the Closing Date, the date of such
amendment, supplement, incorporation or settlement date relating to a sale
pursuant to a Terms Agreement or otherwise, as the case may be, containing
statements and information of the type ordinarily included in accountants'
SAS 72 "comfort letters" to underwriters with respect to financial
statements and certain financial information contained or incorporated by
reference into the Prospectus, including any pro forma financial
information.
(e) Since the date of the most recent audited or unaudited financial
statements included in or incorporated by reference in the Registration
Statement and Prospectus, and, in the case of your obligation to solicit
offers to purchase Notes, up to the time of such solicitations or since the
date of any agreement by you to purchase Notes as principal and, in the
case of your obligation to purchase Notes as principal, up to the
settlement date relating to such purchase pursuant to a Terms Agreement or
otherwise, there shall not have been any material adverse change or event
which would result in a Material Adverse Effect.
(f) Since the respective most recent dates as of which information is
given (i) in the Registration Statement and Prospectus, as amended or
supplemented through the date of this Agreement, including by incorporation
by reference therein, and up to the Closing Date, the Company shall not
have any material contingent liability, except as reflected in or
contemplated by the Registration Statement or Prospectus as so amended or
supplemented, (ii) in the Registration Statement and Prospectus as amended
or supplemented through the date of any agreement by you to purchase Notes
as principal, including by incorporation by reference, and prior to each
corresponding settlement date, the 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.
12
(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) 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 (B) an amendment to the
Company's annual report on Form 10-K filed solely pursuant to General
Instruction A to Form 11-K and (C) with respect to any filings on Form 8-K
that are incorporated by reference in the Registration Statement and the
Prospectus, compliance with this Section 7(g) shall be required if the Form
8-K only contains information responsive to Items 1,2,3, or 4) 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
Xxxxxxxx Xxxxxxx LLP.
In case any of the conditions specified above in this Section 7 shall
not have been fulfilled, this Agreement may be terminated by any of you, as to
yourself only, upon mailing or delivering written notice thereof to the Company;
provided, however, that it shall not be considered a failure to fulfill the
conditions specified in Sections 7(c), 7(d) or 7(h) above if the Company
temporarily suspends its obligations under such sections in accordance with
Section 7A below. Any termination pursuant to the preceding sentence shall be
without liability of the terminating party and the Company to each other, except
as otherwise provided in Sections 6(c), 9(e) and 10 hereof.
7A. Temporary Suspension of Certain Obligations. After the Closing Date, if
the Company shall determine that it does not intend to be in the market with
respect to the Notes during the three months after the date of filing of a
quarterly report on Form 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
13
of the Company pursuant to Sections 7(c), 7(d) and 7(h) with respect to such
filings shall be deemed suspended until such time as the Company notifies each
of you that it wishes to re-enter the market with respect to the Notes (which
could be earlier than three months after the date of the Notice of Temporary
Suspension) and delivers to each of you the documents required by Sections 7(c),
7(d) and 7(h), but dated as of the date the Company re-enters the market with
respect to the Notes.
8. Additional Covenant of the Company. The Company agrees that each
acceptance by it of an offer for the purchase of Notes hereunder shall be deemed
to be an affirmation to you that the representations and warranties of the
Company contained in this Agreement are true and correct as of the date of such
acceptance as though made at and as of such time, and a covenant that such
representations and warranties will be true and correct as of the date of
delivery to the purchaser or the purchaser's agent of the Note or Notes relating
to such acceptance and, in the case of your obligation to purchase Notes as
principal, as of the settlement date relating to such purchase pursuant to a
Terms Agreement or otherwise, as though made at and as of each such date (except
that such representations and warranties shall be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented to each
such date).
9. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless you, your
officers and directors and each person who controls you within the meaning
of Section 15 of the Securities Act or Section 20(a) of the Exchange Act,
against any and all losses, claims, damages or liabilities, joint or
several, to which you or any of them may become subject under the
Securities Act, the Exchange Act or any other statute or common law and to
reimburse you and each of your officers, directors and controlling persons
for any legal or other expenses (including, to the extent hereinafter
provided, reasonable outside counsel fees) incurred by you or them in
connection with investigating or defending any such losses, claims,
damages, liabilities, or in connection with defending any actions, insofar
as such losses, claims, damages, liabilities, expenses or actions arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus, in
either such document as originally filed or as amended or supplemented (if
such amendments or supplements thereto shall have been furnished pursuant
to Section 2(a) hereof), or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading; provided that the indemnity
agreement contained in this Section 9 shall not apply to any such losses,
claims, damages, liabilities, expenses or actions arising out of or based
upon any such untrue statement or alleged untrue statement, or any such
omission or alleged omission, if such statement or omission was made in
reliance upon information furnished in writing to the Company by any of you
or on behalf 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
14
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(d) hereof) or the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, if such statement
or omission was made in reliance upon information furnished in writing to
the Company by you or on your behalf for use in the Registration Statement
or the Prospectus or any amendment or supplement to either thereof. The
indemnity agreement of each of you contained in this Section 9(b) shall
remain operative and in full force and effect, regardless of any
investigation made by or on behalf of the Company or any such controlling
person, and shall survive the delivery of the Notes.
(c) Each of you and the Company agree that, upon the receipt of notice
of the commencement of any action against the Company or any of its
officers or directors, or any person controlling the Company, or against
you, your officers, directors or any controlling person as aforesaid, in
respect of which indemnity may be sought on account of any indemnity
agreement contained herein, you or the Company, as the case may be, will
promptly give written notice of the commencement thereof to the party or
parties against whom indemnity shall be sought hereunder, but the omission
so to notify such indemnifying party or parties of any such action shall
not relieve such indemnifying party or parties from any liability which it
or they may have to the indemnified party or parties otherwise than on
account of such indemnity agreement. In case such notice of any such action
shall be so given, such indemnifying party shall be entitled to participate
at its own expense in the defense or, if it so elects, to assume (in
conjunction with any other indemnifying parties) the defense of such
action, in which event such defense shall be conducted by counsel chosen by
such 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
15
counsel retained by them; provided that, if the defendants (including
impleaded parties) in any such action include both the indemnified party
and the indemnifying party (or parties) and the indemnified party shall
have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to
those available to the indemnifying party (or parties), the indemnified
party shall have the right to select separate counsel to assert and direct
such different or additional legal defenses and to participate otherwise in
the defense of such action on behalf of such indemnified party. The
indemnifying party shall bear the reasonable fees and expenses of outside
counsel retained by the indemnified party if (i) the indemnified party
shall have retained such counsel in connection with the assertion of legal
defenses in accordance with the proviso to the preceding sentence (it being
understood, however, that the indemnifying party shall not be liable for
the expenses of more than one separate counsel (in addition to one local
counsel), representing the indemnified parties under Section 9(a) or 9(b),
as the case may be, who are parties to such action), (ii) the indemnifying
party shall have elected not to assume the defense of such action, (iii)
the indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of the commencement of the action, or
(iv) the indemnifying party has authorized the employment of outside
counsel for the indemnified party at the expense of the indemnifying party.
Notwithstanding the foregoing sentence, an indemnifying party shall not be
liable for any settlement of any proceeding effected without its written
consent (such consent not to be unreasonably withheld), but if settled with
such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment. No
indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which indemnification may be sought hereunder
(whether or not the indemnified party is an actual or potential party to
such a proceeding), by such indemnified party, unless such settlement (x)
includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such proceeding and (y)
does not include a statement as to or an admission of fault, culpability or
failure to act by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 9 is
unavailable to or insufficient to hold harmless an indemnified party under
Section 9(a) or 9(b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable to such
indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative fault of the Company, on the one hand,
and of 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
16
considerations, including relative benefit. The relative fault shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading relates to
information supplied by the Company on the one hand or by you on the other
hand and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company
and each of you agree that it would not be just and equitable if
contribution pursuant to this Section 9(d) were determined by pro rata
allocation (even if all of you were treated as one entity for such purpose)
or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 9(d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in
this Section 9(d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The obligations of each of
you under this Section 9(d) to contribute are several in proportion to the
respective purchases made by or through you to which such loss, claim,
damage or liability (or action in respect thereof) relates and are not
joint.
(e) The remedies provided for in this Section 9 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to
any indemnified party at law or in equity.
10. Representations, Warranties and Agreements to Survive Delivery. All
representations, warranties and agreements contained in this Agreement or
contained in certificates of officers of the Company submitted pursuant to this
Agreement shall remain operative and in full force and effect regardless of any
investigation made by you or on your behalf or on behalf of any controlling
person of you, or by or on behalf of the Company, and shall survive each
delivery of and payment for any of the Notes.
11. Status as Agent. In soliciting offers by others to purchase Notes from
the Company, you are acting solely as agent for the Company, and not as
principal. You will make reasonable efforts to assist the Company in obtaining
performance by each purchaser whose offer to purchase Notes has been accepted by
the Company, but you shall not have any liability to the Company in the event
such purchase is not consummated for any reason. If the Company shall default on
its obligation to deliver Notes to a purchaser whose offer it has accepted, the
Company shall hold you harmless against any loss, claim or damage arising from
or as a result of such default by the Company.
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
17
giving by the terminating party of five (5) business days' written notice of
such termination to the other parties hereto. Each of you may also terminate any
agreement by you to purchase Notes as principal, immediately upon notice to the
Company, at any time at or prior to the settlement date relating thereto if
during such period (a) there shall have occurred any material adverse change in
the financial markets in the United States or in the financial markets of the
country or countries of origin of any foreign currency or currencies in which
the Notes are denominated or payable or any outbreak or escalation of
hostilities or other national or international calamity or crisis the effect of
which is such as to make it, in the judgment of the relevant Agent (which shall
be the lead manager(s) in the case of a syndicated transaction) impracticable or
inadvisable to market the Notes or enforce contracts for the sale of Notes on
the terms and in the manner contemplated in the Prospectus, or (b) if trading in
any securities of the Company has been suspended by the Commission or a national
securities exchange, or if trading generally on either the American Stock
Exchange or the New York Stock Exchange shall have been suspended, or any
limitation on prices in such trading or any restrictions on the distribution of
securities are established by either of such exchanges or by order of the
Commission or any other governmental authority, or if a banking moratorium shall
have been declared either by federal or New York authorities or by the relevant
authorities in the country or countries of origin of any foreign currency or
currencies in which the Notes are denominated or payable, or (c) after the
acceptance by you of such agreement to purchase Notes as principal and at or
prior to the settlement date relating thereto, the Company shall have sustained
a substantial loss by fire, flood, accident or other calamity which in the
judgment of the relevant Agent (which shall be the lead manager(s) in the case
of a syndicated transaction) renders it inadvisable to consummate the sale of
the Notes and the delivery of the Notes upon the terms set forth in such
agreement, regardless of whether or not such loss shall have been insured, or
(d) there shall have occurred a downgrading in the rating accorded the Company's
unsecured debt securities by any "nationally recognized statistical rating
organization" (as that term is defined by the Commission for purposes of Rule
436(g)(2) under the Securities Act) or such an organization shall have given
notice of any intended or potential downgrading or of any review for a possible
change with possible negative implications in its ratings of such securities.
In the event of any such termination, neither the terminating party nor the
terminated party shall have any liability to the other except as provided in the
third full paragraph of Section 3(a), Section 6(c), Section 9 and Section 10 and
except that, if at the time of termination you shall own any of the Notes with
the intention of reselling them or an offer for the purchase of Notes shall have
been accepted by the Company but the time of delivery to the purchaser or such
purchaser's agent of the Note or Notes relating thereto shall not yet have
occurred, you shall comply with the Administrative Procedures, and the Company
shall also have the obligations provided in Sections 7(c) through (h) and
Section 8 hereof until such Notes have been resold or delivered, as the case may
be; provided, however, that the Company's obligation to comply with the
provisions of 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
18
Closing Date and no proceedings for that purpose shall be pending before, or to
the knowledge of the Company threatened by, the Commission on such date, and
(ii) at the Closing Date, except as provided in Section 3(f) herein, an order or
orders of the Commission pursuant to the 1935 Act permitting the issuance and
sale of the Notes substantially in accordance with the terms and conditions
hereof shall be in full force and effect and shall contain no provision
unacceptable to you or the Company (but all provisions of such order or orders
heretofore entered, copies of which have heretofore been delivered to you, are
deemed acceptable to you and the Company, and all provisions of such order or
orders hereafter entered shall be deemed acceptable to you and the Company
unless within 24 hours after receiving a copy of any such order any party to
this Agreement shall give notice to the other parties to the effect that such
order contains an unacceptable provision).
13. Miscellaneous. The validity and interpretation of this Agreement shall
be governed by the laws of the State of New York. This Agreement shall inure to
your benefit, the benefit of the Company and, with respect to the provisions of
Section 9 hereof, each person who controls you and each of your officers and
directors and each controlling person and each officer and director of the
Company referred to in Section 9, and their respective successors, assigns,
executors and administrators. Nothing in this Agreement is intended or shall be
construed to give to any person, firm or corporation any legal or equitable
right, remedy or claim under or in respect of this Agreement or any provision
herein contained. The term "successors" as used in this Agreement shall not
include any of the purchasers, as such, of any of the Notes.
14. Notices. Except as otherwise specifically provided herein or in the
Administrative Procedures, all communications hereunder shall be in writing and,
if to you, shall be sent by facsimile transmission, registered mail or delivered
to the address set forth under your signature below and, if to the Company,
shall be sent by facsimile transmission, registered mail or delivered to it,
attention of Treasurer, Dominion Resources, Inc., 000 Xxxxxxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxx 00000 (facsimile: (000) 000-0000).
[the rest of this page is left blank intentionally]
19
Please sign and return to us a counterpart of this letter, whereupon this
letter will become a binding agreement between the Company and you in accordance
with its terms.
Very truly yours,
DOMINION RESOURCES, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
[the rest of this page is left blank intentionally]
20
The foregoing agreement is
hereby confirmed and accepted,
as of the date first above written.
[execution by Agents to follow]
[the rest of this page is left blank intentionally]
21
SCHEDULE A
The Company will pay each Agent a commission, at the time of settlement of
each sale of Notes by the Company as a result of a solicitation made by such
Agent, in an amount equal to the following percentage of the aggregate principal
amount of such Notes sold:
Percentage of Aggregate
Principal Amount
Maturity Ranges of Notes Sold
-------------------------------------- -----------------------
More than 9 months to less than 1 year .125%
From 1 year to less than 18 months .150%
From 18 months to less than 2 years .200%
From 2 years to less than 3 years .250%
From 3 years to less than 4 years .350%
From 4 years to less than 5 years .450%
From 5 years to less than 6 years .500%
From 6 years to less than 7 years .550%
From 7 years to less than 10 years .600%
From 10 years to less than 15 years .625%
From 15 years to less than 20 years .700%
From 20 years to 30 years .750%
More than 30 years As agreed
A-1
EXHIBIT A
DOMINION RESOURCES, INC.
MEDIUM-TERM NOTES, SERIES B
FORM OF TERMS AGREEMENT
(Date)
Dominion Resources, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Treasurer
Re: Distribution Agreement dated [date]
The undersigned agrees to purchase the following principal amount of Notes,
subject to the following terms, where applicable:
$
-------------------
(or principal amount of foreign or composite currency)
Minimum Denomination:
Interest Rate or Formula:
If Fixed Rate Note,
Fixed Rate:
Interest Payment Dates:
If Floating Rate Note,
Regular Floating Rate Note
---
Inverse Floating Rate Note
---
Floating/Fixed Rate Note
---
Base Rate or formula:
Spread and/or Spread Multiplier, if any:
Initial Interest Rate, if any:
Initial Interest Reset Date:
Interest Reset Dates:
Interest Payment Dates:
Index Currency, if any:
Index Maturity:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Fixed Rate Commencement Date, if any:
Fixed Interest Rate, if any:
Day Count Convention:
Calculation Agent:
A-1
If Redeemable at the Option of the Company,
Initial Redemption Date:
Initial Redemption Percentage: % of par
----
Annual Redemption Percentage Reduction:
Limitation Date:
Refunding Rate:
If Repayment at the Option of the Holder,
Repayment Date(s):
Repayment Rate(s):
Original Issue Date:
Stated Maturity:
Purchase Price: % of par
-----
Specified Currency:
Settlement Date and Time:
Requirements pursuant to Section 6(i) of the Distribution Agreement, if
any:
Additional/Other Terms:
Requirements pursuant to Sections 7(h), (c) and (d) of the Distribution
Agreement (check any that apply):
Officer's Certificate
---
Legal Opinion
---
Comfort Letter
---
---------------------------------------
[Name of Agent Purchasing as Principal]
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
Accepted:
DOMINION RESOURCES, INC.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
A-2
EXHIBIT B
PROPOSED FORM OF OPINION
OF
XXXXXXXX XXXXXXX LLP
DOMINION RESOURCES, INC.
U.S. $3,000,000,000 Medium-Term Notes, Series B
[date]
[names and addresses of Agents]
Dear Ladies and Gentlemen:
We have acted as counsel for you in connection with arrangements for the
issuance by Dominion Resources, Inc. (the Company) of up to U.S. $3,000,000,000
aggregate principal amount of its Medium-Term Notes, Series B due 9 months or
more from the date of issue (the Notes) under and pursuant to the Company's
Indenture, and the offering of the Notes by you pursuant to a Distribution
Agreement, dated [date], by and between you and the Company (the Distribution
Agreement). All terms not otherwise defined herein shall have the meanings set
forth in the Distribution Agreement.
We have examined originals, or copies certified to our satisfaction, of
such corporate records of the Company, indentures, agreements and other
instruments, certificates of public officials, certificates of officers and
representatives of the Company and of the Trustee, and other documents, as we
have deemed necessary as a basis for the 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, 000 X. Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx, 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.
B-1
Based upon the foregoing, and having regard to legal considerations which
we deem relevant, as of the date hereof, we are of the opinion that:
A. The Company is a corporation duly incorporated and existing as a
corporation in good standing under the laws of Virginia and has the corporate
power to transact its business as described in the Prospectus.
B. An appropriate order of the Commission with respect to the sale of the
Notes under the Public Utility Holding Company of 1935, as amended, has been
issued, and such order remains in effect at this date and constitutes valid and
sufficient authorization for the sale of the Notes as contemplated by the
Distribution Agreement. No approval or consent by any public regulatory body,
other than such order and notification of effectiveness by the Commission and
approvals under the Securities Act and the Rules and Regulations, all of which
have been obtained, is legally required in connection with the sale of the Notes
as contemplated by the Distribution Agreement (except to the extent that
compliance with the provisions of securities or blue sky laws of certain states
may be required in connection with the sale of the Notes in such states) and the
carrying out of the provisions of the Distribution Agreement.
C. The Distribution Agreement has been duly authorized by all necessary
corporate action and has been duly executed and delivered by the Company.
D. The Indenture has been duly authorized, executed and delivered by the
Company and has been duly qualified under the Trust Indenture Act and
constitutes a valid and binding obligation of the Company, except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights generally or
by general equitable principles (regardless of whether enforcement is considered
in a proceeding in equity or at law), and except further as enforcement thereof
may be limited by requirements that a claim with respect to any debt securities
issued under the Indenture that are payable in a foreign or composite currency
(or a foreign or composite currency judgment in respect of such claim) be
converted into U.S. dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or by governmental authority to limit,
delay or prohibit the making of payments outside the United States.
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
B-2
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) 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.
H. The statements relating to the Notes contained in the prospectus
initially filed as part of the Registration Statement under the captions
DESCRIPTION OF DEBT SECURITIES and ADDITIONAL TERMS OF THE SENIOR DEBT
SECURITIES as all or any of them have been supplemented by the statements
relating to the Notes under the caption DESCRIPTION OF THE NOTES in the
prospectus supplement dated [date] are accurate and do not omit any material
fact required to be stated therein or necessary to make such statements not
misleading.
* * * * *
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, and 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 accordingly assume no responsibility for the accuracy or
completeness of the statements made in the Registration Statement, other than
with regard to the statements relating to the Notes as described in paragraph
(H). 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 it 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. In addition, we participated in one or more due diligence
conferences with representatives of the Company and attended the closing at
which the Company satisfied the conditions contained in the Distribution
Agreement. None of the foregoing participation, review or attendance 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
B-3
Registration Statement or the Prospectus contains on the date here (in all
cases, excepting the financial statements and schedules and other financial
information contained or incorporated therein by reference, any pro forma
financial information and notes thereto and the Statement of Eligibility of the
Trustee filed in Form T-1 under the Trust Indenture Act included or incorporated
by reference into the Registration Statement or the Prospectus, as to which we
express no belief) any untrue statement of any material fact or omitted on said
date or now omits 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.
In rendering the opinions set forth in paragraphs (A) - (H) above and in
making the statements expressed in the preceding paragraph, we do not purport to
express an opinion on any laws other than those of the Commonwealth of Virginia,
the State of New York and the United States of America. This opinion may not be
relied upon by, nor may copies be delivered to, any person without our prior
written consent.
Very truly yours,
XXXXXXXX XXXXXXX LLP
B-4
EXHIBIT C
PROPOSED FORM OF OPINION
OF
MCGUIREWOODS LLP
DOMINION RESOURCES, INC.
U.S. $3,000,000,000 Medium-Term Notes, Series B
[date]
[names and addresses of Agents]
Dear Ladies and Gentlemen:
The arrangements for issuance of up to U.S. $3,000,000,000 aggregate
principal amount of Medium-Term Notes, Series B due 9 months or more from the
date of issue (the Notes) of Dominion Resources, Inc. (the Company) under the
Company's Indenture, dated as of June 1, 2000, between the Company and JPMorgan
Chase Bank (formerly known as The Chase Manhattan Bank), as Trustee (the
Trustee), as previously supplemented, and as further supplemented by a
Fourteenth Supplemental Indenture, dated as of [date] (such Indenture, as
supplemented, is referred to herein as the Indenture), pursuant to a
Distribution Agreement, dated [date] by and between you and the Company (the
Distribution Agreement), have been taken under our supervision as counsel for
the Company. Terms not otherwise defined herein have the meanings set forth in
the Distribution Agreement.
We have examined originals, or copies certified to our satisfaction, of
such corporate records of the Company, indentures, agreements and other
instruments, certificates of public officials, certificates of officers and
representatives of the Company 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:
C-1
1. The Company has been duly incorporated and is validly existing as a
corporation under the laws of Virginia, and has the corporate power and
authority to own, lease and operate its properties and to conduct its business
as described in the Prospectus and to enter into and perform its obligations
under the Distribution Agreement; and the Company is duly qualified as a foreign
corporation to transact business and is in good standing in each other
jurisdiction in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except where the
failure to so qualify or to be in good standing would not result in a Material
Adverse Effect.
2. No filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any court or governmental authority or
agency, domestic or foreign (other than those required under the Public Utility
Holding Company Act of 1935, the Securities Act and the Rules and Regulations,
which have been obtained, or as may be required under the securities or blue sky
laws of the various states) is necessary or required in connection with the due
authorization, execution and delivery of the Distribution Agreement or the due
execution, delivery or performance of the Indenture by the Company or for the
offering, issuance, sale or delivery of the Notes. An appropriate order or
orders of the Commission with respect to the sale of the Notes under the Public
Utility Holding Company Act of 1935 has been issued, and such order or orders
remains in effect at this date and constitutes valid and sufficient
authorization for the sale of the Notes as contemplated by the Distribution
Agreement.
3. The Distribution Agreement has been duly authorized by all necessary
corporate action and has been duly executed and delivered by the Company.
4. The Indenture has been duly authorized, executed and delivered by the
Company and has been duly qualified under the Trust Indenture Act and
constitutes a valid and binding obligation of the Company, except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights generally or
by general equitable principles (regardless of whether enforcement is considered
in a proceeding in equity or at law), and except further as enforcement thereof
may be limited by requirements that a claim with respect to any debt securities
issued under the Indenture that are payable in a foreign or composite currency
(or a foreign or composite currency judgment in respect of such claim) be
converted into U.S. dollars at a rate of exchange prevailing on a date
determined pursuant 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,
C-2
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 THE 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 [date], are
substantially accurate and fair.
9. With regard to the discussion in the Prospectus Supplement under the
caption CERTAIN UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS, we are of the
opinion that under current United States federal income tax law, although the
discussion does not purport to discuss all possible United States federal income
tax consequences of the purchase, ownership and disposition of the Notes, such
discussion constitutes a fair and accurate summary of the matters discussed
therein in all material respects. In rendering the aforementioned tax opinion,
we have considered the current provisions of the Internal Revenue Code of 1986,
as amended, proposed and final Treasury regulations promulgated thereunder,
judicial decisions and Internal Revenue Service rulings, all of which are
subject to change, which changes may be retroactively 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
C-3
perform its obligations under the Distribution Agreement or to consummate the
transactions contemplated thereby or by the Prospectus.
We have participated in conferences with officers and other representatives
of the Company and your representatives at which the contents of the
Registration Statement and the Prospectus were discussed, and we have consulted
with officers and other employees of the Company to inform them of the
disclosure requirements of the Securities Act. We have examined various reports,
records, contracts and other documents of the Company and orders and instruments
of public officials, which our investigation led us to deem pertinent. In
addition, we attended the due diligence meetings with representatives of the
Company and the closing at which the Company satisfied the conditions contained
in Section 7 of the Distribution Agreement. We have not, however, undertaken to
make any independent review of other records of the Company which our
investigation did not lead us to deem pertinent. As to the statistical
statements in the Registration Statement (which includes the Incorporated
Documents), we have relied solely on the officers of the Company. We accordingly
assume no responsibility for the accuracy or completeness of the statements made
in the Registration Statement, except as stated above. Such conferences,
consultation, examination and attendance disclosed to us no information with
respect to such other matters that gives us reason to believe that the
Registration Statement contained on the date the Registration Statement became
effective, or the Prospectus contained on the date it was issued, or that the
Registration Statement or the Prospectus (in each case, except with respect to
the financial statements and schedules and other financial information contained
or incorporated by reference in the Registration Statement or the Prospectus)
contains on the date hereof, any untrue statement of a material fact or omitted
on such date or omits on the date hereof to state a material fact required to be
stated therein or necessary to make the statements therein not misleading. The
foregoing assurance is provided on the basis that any statement contained in an
Incorporated Document shall be deemed not to be contained in the Registration
Statement or Prospectus if the statement has been modified or superseded by any
statement in a subsequently filed Incorporated Document or in the Registration
Statement or Prospectus prior to the date of the Purchase Agreement.
We do not purport to express an opinion on any laws other than those of the
Commonwealth of Virginia, the State of New York and the United States of
America. This opinion may not be relied upon by, nor may copies be delivered to,
any person without our prior written consent.
Yours very truly,
MCGUIREWOODS LLP
C-4
EXHIBIT D
DOMINION RESOURCES, INC.
ADMINISTRATIVE PROCEDURES
for Fixed Rate and Floating Rate Medium-Term Notes, Series B
(Dated as of [date])
Medium-Term Notes Due Nine Months or More From Date of Issue (the "Notes")
are to be offered on a continuous basis by DOMINION RESOURCES, INC., a Virginia
corporation (the "Company"), to or through [Agents] (each, an "Agent" and,
collectively, the "Agents") pursuant to a Distribution Agreement, dated [date]
(the "Distribution Agreement"), by and among the Company and the Agents. The
Distribution Agreement provides for the sale of Notes by the Company to one or
more of the Agents as principal for resale to investors and other purchasers,
for the sale of Notes by the Company through one or more of the Agents who
solicit offers to purchase the Notes and receive a commission (as may from time
to time be agreed to by the Company and the related Agent or Agents) and for the
sale of Notes by the Company directly to investors.
Unless otherwise agreed by the related Agent or Agents and the Company,
Notes will be purchased by the related Agent or Agents as principal. Such
purchases will be made in accordance with terms agreed upon by the related Agent
or Agents and the Company (which terms shall be agreed upon orally, with written
confirmation prepared by the related Agent or Agents and mailed to the Company).
If agreed upon by any Agent or Agents and the Company, the Agent or Agents,
acting solely as agent or agents for the Company and not as principal, will use
best efforts to solicit offers to purchase the Notes. Only those provisions in
these Administrative Procedures that are applicable to the particular role to be
performed by the related Agent or Agents shall apply to the offer and sale of
the relevant Notes.
The Notes will be issued as a series of debt securities under an Indenture,
dated as of June 1, 2000, between the Company and JPMorgan Chase Bank (formerly
known as The Chase Manhattan Bank), as trustee (together with any successor in
such capacity, the "Trustee") as previously supplemented and as further
supplemented by a Fourteenth Supplemental Indenture, dated as of [date] (such
Indenture as supplemented is referred to herein as the "Indenture"). The Company
has filed a Registration Statement with the Securities and Exchange Commission
(the "Commission") registering, among other securities, debt securities (which
includes the Notes) (the "Registration Statement", which term shall include any
additional registration statements filed in connection with the Notes). The most
recent base prospectus deemed part of the Registration Statement, as
supplemented with respect to the Notes, is herein referred to as "Prospectus".
The most recent supplement to the Prospectus setting forth the purchase price,
interest rate or formula, maturity date and other terms of the Notes (as
applicable) is herein referred to as the "Pricing Supplement".
D-1
The Notes will either be issued (a) in book-entry form and represented by
one or more fully registered Notes without coupons (each, a "Global Note")
delivered to the Trustee, as agent for The Depository Trust Company ("DTC"), and
recorded in the book-entry system maintained by DTC, or (b) in certificated form
(each, a "Certificated Note") delivered to the investor or other purchaser
thereof or a person designated by such investor or other purchaser.
General procedures relating to the issuance of all Notes are set forth in
Part I hereof. Additionally, Notes issued in book-entry form will be issued in
accordance with the procedures set forth in Part II hereof and Certificated
Notes will be issued in accordance with the procedures set forth in Part III
hereof. Capitalized terms used but not otherwise defined herein shall have the
meanings ascribed thereto in the Indenture or the Notes, as the case may be.
PART I: PROCEDURES OF GENERAL APPLICABILITY
Date of Issuance/
Authentication: Each Note will be dated as of the date of its
authentication by the Trustee. Each Note shall also
bear an original issue date (each, an "Original
Issue Date"). The Original Issue Date shall remain
the same for all Notes subsequently issued upon
transfer, exchange or substitution of an original
Note regardless of their dates of authentication.
Maturities: Each Note will mature on a date nine months or more
from its Original Issue Date (the "Stated Maturity
Date") selected by the investor or other purchaser
and agreed to by the Company.
Registration: Unless otherwise provided in the applicable Pricing
Supplement, Notes will be issued only in fully
registered form.
Denominations: Unless otherwise provided in the applicable Pricing
Supplement, the Notes, except for Notes denominated
in a Specified Currency other than U.S. dollars,
shall be issued only in denominations of $25 or
$1,000, as specified in the applicable Pricing
Supplement, and any integral multiple of such
denominations in excess thereof. Notes denominated
in a Specified Currency other than U.S. dollars will
be issued in equivalent denominations, as determined
by reference to the Market Exchange Rate on the
Business Day immediately preceding the date of
issuance unless otherwise specified in the
applicable Pricing Supplement.
D-2
Base Rates applicable
to Floating Rate
Notes: Unless otherwise provided in the applicable Pricing
Supplement, Floating Rate Notes will bear interest
at a rate or rates determined by reference to the CD
Rate, the CMT Rate, the Commercial Paper Rate, the
Federal Funds Rate, LIBOR, the Prime Rate, the
Treasury Rate, or such other Base Rate or formula as
may be set forth in applicable Pricing Supplement,
or by reference to two or more such rates, as
adjusted by the Spread and/or Spread Multiplier, if
any, applicable to such Floating Rate Notes.
Redemption/Repayment: The Notes will be subject to redemption by the
Company in accordance with the terms of the Notes,
which will be fixed at the time of sale and set
forth in the applicable Pricing Supplement. If no
Initial Redemption Date is indicated with respect to
a Note, such Note will not be redeemable prior to
its Stated Maturity Date.
The Notes will be subject to repayment at the option
of the Holders thereof in accordance with the terms
of the Notes, which will be fixed at the time of
sale and set forth in the applicable Pricing
Supplement. If no Optional Repayment Date is
indicated with respect to a Note, such Note will not
be repayable at the option of the Holder prior to
its Stated Maturity Date.
Calculation of
Interest: In case of Fixed Rate Notes, interest (including
payments for partial periods) will be calculated and
paid on the basis of a 360-day year of twelve 30-day
months.
The interest rate on each Floating Rate Note will be
calculated by reference to the specified Base
Rate(s) plus or minus the applicable Spread, if any,
and/or multiplied by the applicable Spread
Multiplier, if any.
Unless otherwise provided in the applicable Pricing
Supplement, interest on each Floating Rate Note will
be calculated by multiplying its principal amount by
an accrued interest factor. Such accrued interest
factor is computed by adding the interest factor
calculated for each day in the period for which
accrued interest is being accrued. Unless otherwise
provided in the applicable Pricing Supplement, the
interest factor for each such day is computed by
dividing the interest rate applicable to such day by
360 if the CD Rate, Commercial
D-3
Paper Rate, Federal Funds Rate, LIBOR (except for
LIBOR Notes denominated in pounds sterling) or Prime
Rate is an applicable Base Rate, by 365 in the case
of LIBOR Notes denominated in pounds sterling if
LIBOR is the applicable Base Rate, or by the actual
number of days in the year if the CMT Rate or
Treasury Rate is an applicable Base Rate. As
provided in the applicable Pricing Supplement, the
interest factor for Notes for which the interest
rate is calculated with reference to two or more
Base Rates will be calculated in each period in the
same manner as if only the lowest, highest or
average of the applicable Base Rates applied.
Interest: General. Each Note will bear interest in accordance
with its terms. Unless otherwise provided in the
applicable Pricing Supplement, interest on each Note
will accrue from and including the Original Issue
Date of such Note for the first interest period or
from the most recent Interest Payment Date (as
defined below) to which interest has been paid or
duly provided for all subsequent interest periods to
but excluding applicable Interest Payment Date or
the Stated Maturity Date or date of earlier
redemption or repayment, as the case may be (the
Stated Maturity Date or date of earlier redemption
or repayment is referred to herein as the "Maturity
Date" with respect to the principal repayable on
such date).
If an Interest Payment Date or the Maturity Date
with respect to any Fixed Rate Note falls on a day
that is not a Business Day (as defined below), the
required payment to be made on such day need not be
made on such day, but may be made on the next
succeeding Business Day with the same force and
effect as if made on such day, and no interest shall
accrue on such payment for the period from and after
such day to the next succeeding Business Day. If an
Interest Payment Date other than the Maturity Date
with respect to any Floating Rate Note would
otherwise fall on a day that is not a Business Day,
such Interest Payment Date will be postponed to the
next succeeding Business Day, except that in the
case of a Note for which LIBOR is an applicable Base
Rate, if such Business Day falls in the next
succeeding calendar month, such Interest Payment
Date will be the immediately preceding Business Day.
If the Maturity Date with respect to any Floating
Rate Note falls on a day that is not a Business Day,
the required payment to be made on such day need not
be made on such day, but may be made on the next
succeeding Business Day with the same force and
effect as if made on such day, and no interest shall
accrue
D-4
on such payment for the period from and after the
Maturity Date to the next succeeding Business Day.
Unless otherwise provided in the applicable Pricing
Supplement, "Business Day" means with respect to any
Note, any day, other than a Saturday or Sunday, that
is neither (a) a legal holiday nor (b) a day on
which banking institutions are authorized or
required by law, regulation or executive order to
close in New York City; provided, however, that for
Notes denominated in a Specified Currency other than
United States dollars that day is also not a day on
which commercial banking institutions are authorized
or required by law, regulation or executive order to
close in the Principal Financial Center of the
country issuing the Specified Currency (or for Notes
denominated in euros, that day is also a day on
which the Trans-European Automated Real-time Gross
Settlement Express Transfer System, commonly
referred to as "TARGET," is operating); provided,
further, that with respect to a LIBOR Note, the day
must also be a London Business Day.
"London Business Day" means any day on which
commercial banks are open for business (including
for dealings in deposits in the relevant Index
Currency) in London.
"Principal Financial Center" means as applicable,
the capital city of the country issuing the
Specified Currency; or the capital city of the
country to which the Index Currency relates;
provided, however, that the Principal Financial
Center will be New York City for United States
dollars, Sydney for Australian dollars, Toronto for
Canadian dollars, Johannesburg for South African
rand and Zurich for Swiss francs.
Regular Record Dates. Unless otherwise provided in
the applicable Pricing Supplement, the "Regular
Record Date" for a Note shall be the close of
business on the fifteenth calendar day (whether or
not a Business Day) preceding the applicable
Interest Payment Date.
Interest Payment Dates. Interest payments will be
made on each Interest Payment Date commencing with
the first Interest Payment Date following the
Original Issue Date; provided, however, the first
payment of interest on any Note originally issued
between a Regular Record Date and an Interest
Payment Date will occur on the Interest Payment Date
following the next succeeding Regular Record Date.
D-5
Unless otherwise provided in the applicable Pricing
Supplement, interest payments on Fixed Rate Notes
will be made semiannually in arrears on May 1 and
November 1 of each year and on the Maturity Date,
while interest payments on Floating Rate Notes will
be made as specified in the applicable Pricing
Supplement.
Acceptance and
Rejection of Offers
from Solicitation
as Agents: If agreed upon by any Agent and the Company, then
such Agent acting solely as agent for the Company
and not as principal will solicit purchases of the
Notes. Each Agent will communicate to the Company,
orally or in writing, each reasonable offer to
purchase Notes solicited by such Agent on an agency
basis, other than those offers rejected by such
Agent. Each Agent has the right, in its discretion
reasonably exercised, to reject any proposed
purchase of Notes, as a whole or in part, and any
such rejection shall not be a breach of such Agent's
agreement contained in the Distribution Agreement.
The Company has the sole right to accept or reject
any proposed purchase of Notes, in whole or in part,
and any such rejection shall not a breach of the
Company's agreement contained in the Distribution
Agreement. Each Agent has agreed to make best
efforts to assist the Company in obtaining
performance by each purchaser whose offer to
purchase Notes has been solicited by such Agent and
accepted by the Company.
Preparation of
Pricing Supplement: If any offer to purchase a Note is accepted by the
Company, the Company will promptly prepare a Pricing
Supplement reflecting the terms of such Note.
Information to be included in the Pricing Supplement
shall include:
1. the name of the Company;
2. the title of the Notes;
3. the date of the Pricing Supplement and the date
of the Prospectus to which the Pricing
Supplement relates;
4. the name of the Offering Agent (as defined
below);
D-6
5. whether such Notes are being sold to the
Offering Agent as principal or to an investor
or other purchaser through the Offering Agent
acting as agent for the Company;
6. with respect to Notes sold to the Offering
Agent as principal, whether such Notes will be
resold by the Offering Agent to investors and
other purchasers at (i) a fixed public offering
price of a specified percentage of their
principal amount or (ii) at varying prices
related to prevailing market prices at the time
of resale to be determined by the Offering
Agent;
7. with respect to Notes sold to an investor or
other purchaser through the Offering Agent
acting as agent for the Company, whether such
Notes will be sold at (i) 100% of their
principal amount or (ii) a specified percentage
of their principal amount;
8. the Offering Agent's discount or commission;
9. the net proceeds to the Company;
10. the Principal Amount, Specified Currency,
Original Issue Date, Stated Maturity Date,
Interest Payment Date(s), Authorized
Denomination, Initial Redemption Date, if any,
Initial Redemption Percentage, if any, Annual
Redemption Percentage Reduction, if any,
Optional Repayment Date(s), if any, Exchange
Rate Agent, if any, Default Rate, if any, and,
in the case of Fixed Rate Notes, the Interest
Rate, and whether such Fixed Rate Note is an
Original Issue Discount Note (and, if so, the
Issue Price), and, in the case of Floating Rate
Notes, the Interest Category, the Base Rate or
Bases, the Day Count Convention, Index Maturity
(if applicable), Initial Interest Rate, if any,
Maximum Interest Rate, if any, Minimum Interest
Rate, if any, Initial Interest Reset Date,
Interest Reset Dates, Spread and/or Spread
Multiplier, if any, and Calculation Agent; and
11. any other additional provisions of the Notes
material to investors or other purchasers of
the Notes not otherwise specified in the
Prospectus.
The Company shall use its best efforts to send such
Pricing Supplement by email, facsimile or overnight
express (for delivery by the close of business on
the applicable trade date, but in no event later
than 11:00 a.m. New York City time, on
D-7
the Business Day following the applicable trade
date) to the Agent which made or presented the offer
to purchase the applicable Note (in such capacity,
the "Offering Agent") and the Trustee at the
following applicable address:
If to:
[notice provisions for Agents]
X-0
X-0
and to:
Xxxxxxxx Xxxxxxx LLP
0000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: F. Xxxxxxxxx Xxxxxxxx, Xx., Esquire
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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 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
D-10
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 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
[notice provisions for Agents]
D-11
D-12
and to:
Xxxxxxxx Xxxxxxx LLP
0000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: F. Xxxxxxxxx Xxxxxxxx, Xx., Esquire
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
In the event that at the time the solicitation of
offers to purchase from the Company is suspended
(other than to establish or change interest rates or
formulas, maturities, prices or other similar
variable terms with respect to the Notes) there
shall be any offers to purchase Notes that have been
accepted by the Company which have not been settled,
the Company will promptly advise the Offering Agent
and the Trustee whether such offers may be settled
and whether copies of the Prospectus as theretofore
amended and/or supplemented as in effect at the time
of the suspension may be delivered in connection
with the settlement of such offers. The Company will
have the sole responsibility for such decision and
for any arrangements which may be made in the event
that the Company determines that such offers may not
be settled or that copies of such Prospectus may not
be so delivered.
Delivery of Prospectus
and applicable
Pricing Supplement: A copy of the most recent Prospectus and the
applicable Pricing Supplement, which pursuant to
Rule 434 may be delivered separately from the
Prospectus, must accompany or precede the earlier of
(a) the written confirmation of a sale sent to an
investor or other purchaser or its agent and (b) the
delivery of Notes to an investor or other purchaser
or its agent.
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
D-14
PART II: PROCEDURES FOR NOTES ISSUED IN BOOK-ENTRY FORM
In connection with the qualification of Notes issued in book-entry form for
eligibility in the book-entry system maintained by DTC, JPMorgan Chase Bank
(formerly known as The Chase Manhattan Bank) ("JPMorgan") will perform the
custodial, document control and administrative functions described below, in
accordance with its respective obligations under a Letter of Representations
from the Company and JPMorgan to DTC, dated February 27, 2003, and a Certificate
Agreement, dated November 13, 2001, between JPMorgan and DTC, as amended (the
"Certificate Agreement"), and its obligations as a participant in DTC, including
DTC's Same-Day Funds Settlement System ("SDFS").
Issuance: All Fixed Rate Notes issued in book-entry form
having the same Original Issue Date, Specified
Currency, Interest Rate, Default Rate, Interest
Payment Dates, redemption and/or repayment terms, if
any, and Stated Maturity Date (collectively, the
"Fixed Rate Terms") will be represented initially by
a single Global Note; and all Floating Rate Notes
issued in book-entry form having the same Original
Issue Date, Specified Currency, Interest Category,
formula for the calculation of interest (including
the Base Rate or Bases, which may be the CD Rate,
the CMT Rate, the Commercial Paper Rate, the Federal
Funds Rate, LIBOR, the Prime Rate or the Treasury
Rate or any other Base Rate or formula, and Spread
and/or Spread Multiplier, if any), Day Count
Convention, Initial Interest Rate, Default Rate,
Index Maturity (if applicable), Minimum Interest
Rate, if any, Maximum Interest Rate, if any,
redemption and/or repayment terms, if any, Interest
Payment Dates, Initial Interest Reset Date, Interest
Reset Dates and Stated Maturity Date (collectively,
the "Floating Rate Terms") will be represented
initially by a single Global Note.
For other variable terms with respect to the Fixed
Rate Notes and Floating Rate Notes, see the
Prospectus and the applicable Pricing Supplement.
Owners of beneficial interests in Global Notes will
be entitled to physical delivery of Certificated
Notes equal in principal amount to their respective
beneficial interests only upon certain limited
circumstances described in the Prospectus.
Identification: The Company has arranged with the CUSIP Service
Bureau of Standard & Poor's Corporation (the "CUSIP
Service Bureau") for the reservation of one series
of CUSIP numbers, which series consists of
approximately 900 CUSIP numbers which
D-15
have been reserved for and relating to Global Notes
and the Company has delivered to each of JPMorgan
and DTC such list of such CUSIP numbers. The Company
will assign CUSIP numbers to Global Notes as
described below under Settlement Procedure B. DTC
will notify the CUSIP Service Bureau periodically of
the CUSIP numbers that the Company has assigned to
Global Notes. JPMorgan will notify the Company at
any time when fewer than 100 of the reserved CUSIP
numbers remain unassigned to Global Notes, and, if
it deems necessary, the Company will reserve and
obtain additional CUSIP numbers for assignment to
Global Notes. Upon obtaining such additional CUSIP
numbers, the Company will deliver a list of such
additional numbers to JPMorgan and DTC. Notes issued
in book-entry form in excess of $500,000,000 (or the
equivalent thereof in one or more foreign or
composite currencies) aggregate principal amount and
otherwise required to be represented by the same
Global Note will instead be represented by two or
more Global Notes which shall all be assigned the
same CUSIP number.
Registration: Unless otherwise specified by DTC, each Global Note
will be registered in the name of Cede & Co., as
nominee for DTC, on the register maintained by
JPMorgan under the Indenture. The beneficial owner
of a Note issued in book-entry form (i.e., an owner
of a beneficial interest in a Global Note) (or one
or more indirect participants in DTC designated by
such owner) will designate one or more participants
in DTC (with respect to such Note issued in
book-entry form, the "Participants") to act as agent
for such beneficial owner in connection with the
book-entry system maintained by DTC, and DTC will
record in book-entry form, in accordance with
instructions provided by such Participants, a credit
balance with respect to such Note issued in
book-entry form in the account of such Participants.
The ownership interest of such beneficial owner in
such Note issued in book-entry form will be recorded
through the records of such Participants or through
the separate records of such Participants and one or
more indirect participants in DTC.
Transfers: Transfers of beneficial ownership interests in a
Global Note will be accomplished by book entries
made by DTC and, in turn, by Participants (and in
certain cases, one or more indirect participants in
DTC) acting on behalf of beneficial transferors and
transferees of such Global Note.
D-16
Exchanges: JPMorgan may deliver to DTC and the CUSIP Service
Bureau at any time a written notice specifying (a)
the CUSIP numbers of two or more Global Notes
outstanding on such date that represent Global Notes
having the same Fixed Rate Terms or Floating Rate
Terms, as the case may be (other than Original Issue
Dates), and for which interest has been paid to the
same date; (b) a date, occurring at least 30 days
after such written notice is delivered and at least
30 days before the next Interest Payment Date for
the related Notes issued in book-entry form, on
which such Global Notes shall be exchanged for a
single replacement Global Note; and (c) a new CUSIP
number, obtained from the Company, to be assigned to
such replacement Global Note. Upon receipt of such a
notice, DTC will send to its Participants (including
JPMorgan) a written reorganization notice to the
effect that such exchange will occur on such date.
Prior to the specified exchange date, JPMorgan will
deliver to the CUSIP Service Bureau written notice
setting forth such exchange date and the new CUSIP
number and stating that, as of such exchange date,
the CUSIP numbers of the Global Notes to be
exchanged will no longer be valid. On the specified
exchange date, JPMorgan will exchange such Global
Notes for a single Global Note bearing the new CUSIP
number and the CUSIP numbers of the exchanged Notes
will, in accordance with CUSIP Service Bureau
procedures, be canceled and not immediately
reassigned. Notwithstanding the foregoing, if the
Global Notes to be exchanged exceed $500,000,000 (or
the equivalent thereof in one or more foreign or
composite currencies) in aggregate principal amount,
one replacement Note will be authenticated and
issued to represent each $500,000,000 (or the
equivalent thereof in one or more foreign or
composite currencies) in aggregate principal amount
of the exchanged Global Notes and an additional
Global Note or Notes will be authenticated and
issued to represent any remaining principal amount
of such Global Notes (See "Denominations" below).
Denominations: Unless otherwise provided in the applicable Pricing
Supplement, Notes issued in book-entry form will be
issued in denominations of $25 or $1,000 and
integral multiples of such denominations in excess
thereof. Global Notes will not be denominated in
excess of $500,000,000 (or the equivalent thereof in
one or more foreign or composite currencies)
aggregate principal amount. If one or more Notes are
issued in book-entry form in excess of $500,000,000
(or the equivalent thereof in one or more foreign or
composite currencies)
D-17
aggregate principal amount and would, but for the
preceding sentence, be represented by a single
Global Note, then one Global Note will be issued to
represent each $500,000,000 (or 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, JPMorgan will deliver to the
Company and DTC a written notice specifying by CUSIP
number the amount of interest to be paid on each
Global Note on the following Interest Payment Date
(other than an Interest Payment Date coinciding with
the Maturity Date) and the total of such amounts, to
the extent then ascertainable. DTC will confirm the
amount payable on each Global Note on such Interest
Payment Date by reference to the daily bond reports
published by Standard & Poor's Corporation. On such
Interest Payment Date, the Company will pay to
JPMorgan in immediately available funds an amount
sufficient to pay the interest then due and owing on
the Global Notes, and upon receipt of such funds
from the Company, JPMorgan in turn will pay to DTC
such total amount of interest due on such Global
Notes (other than on the Maturity Date) which is
payable in U.S. dollars, at the times and in the
manner set forth below under "Manner of Payment".
JPMorgan shall make payment of that amount of
interest due and owing on any Global Notes that
Participants have elected to receive in foreign or
composite currencies directly to such Participants.
Notice of Interest Rates. Promptly after each
Interest Determination Date or Calculation Date, as
the case may be, for Floating Rate Notes issued in
book-entry form, JPMorgan will notify each of
Xxxxx'x Investors Service, Inc. and Standard &
Poor's Corporation of the interest rates determined
as of such Interest Determination Date.
Payments at Maturity. On or about the first Business
Day of each month, JPMorgan will deliver to the
Company and DTC a written list of principal,
premium, if any, and interest to be paid on each
Global Note maturing or otherwise becoming due in
the following month, to the extent then
ascertainable.
D-18
JPMorgan, the Company and DTC will confirm the
amounts of such principal, premium, if any, and
interest payments with respect to each such Global
Note on or about the fifth Business Day preceding
the Maturity Date of such Global Note. On the
Maturity Date, the Company will pay to JPMorgan in
immediately available funds an amount sufficient to
make the required payments, and upon receipt of such
funds JPMorgan in turn will pay to DTC the principal
amount of Global Notes, together with premium, if
any, and interest due on the Maturity Date, which
are payable in U.S. dollars, at the times and in the
manner set forth below under "Manner of Payment".
JPMorgan shall make payment of the principal,
premium, if any, and interest to be paid on the
Maturity Date of each Global Note that Participants
have elected to receive in foreign or composite
currencies directly to such Participants. Promptly
after (i) payment to DTC of the principal, premium,
if any, and interest due on the Maturity Date of
such Global Note which are payable in U.S. dollars
and (ii) payment of the principal, premium, if any,
and interest due on the Maturity Date of such Global
Note to those Participants who have elected to
receive such payments in foreign or composite
currencies, the Trustee will cancel such Global Note
and deliver it to the Company with an appropriate
debit advice. On the first Business Day of each
month, the Trustee will deliver to the Company a
written statement indicating the total principal
amount of outstanding Global Notes as of the close
of business on the immediately preceding Business
Day.
Manner of Payment. The total amount of any
principal, premium, if any, and interest due on
Global Notes on any Interest Payment Date or the
Maturity Date, as the case may be, which is payable
in U.S. dollars shall be paid by the Company to
JPMorgan in funds available for use by JPMorgan no
later than 10:00 a.m., New York City time, on such
date. The Company will make such payment on such
Global Notes to an account specified by JPMorgan.
Upon receipt of such funds, JPMorgan will pay by
separate wire transfer (using Fedwire message entry
instructions in a form previously specified by DTC)
to an account at the Federal Reserve Bank of New
York previously specified by DTC, in funds available
for immediate use by DTC, each payment in U.S.
dollars of principal, premium, if any, and interest
due on Global Notes on such date. Thereafter on such
date, DTC will pay, in accordance with its SDFS
operating procedures then in effect, such amounts in
funds available for immediate use to the respective
Participants in whose names the beneficial interests
in such
D-19
Global Notes are recorded in the book-entry system
maintained by DTC. Neither the Company nor JPMorgan
shall have any responsibility or liability for the
payment in U.S. dollars by DTC of the principal of,
or premium, if any, or interest on, the Global
Notes. JPMorgan shall make all payments of
principal, premium, if any, and interest on each
Global Note that Participants have elected to
receive in foreign or composite currencies directly
to such Participants.
Withholding Taxes. The amount of any taxes required
under applicable law to be withheld from any
interest payment on a Global Note will be determined
and withheld by the Participant, indirect
participant in DTC or other Person responsible for
forwarding payments and materials directly to the
beneficial owner of such Global Note.
Settlement Procedures: Settlement Procedures with regard to each Note in
book-entry form sold by an Agent, as agent of the
Company, or purchased by an Agent, as principal,
will be as follows:
A. The Offering Agent will advise the Company by
telephone:, confirmed by facsimile, of the
following settlement information:
1. Principal amount, Authorized Denomination,
and Specified Currency.
2. Exchange Rate Agent, if any.
3. (a) Fixed Rate Notes:
(i) Interest Rate.
(ii) Interest Payment Dates.
(iii) Whether such Note is being
issued with Original Issue
Discount and, if so, the terms
thereof.
(b) Floating Rate Notes:
(i) Interest Category.
(ii) Base Rate(s).
D-20
(iii) Initial Interest Rate.
(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.
D-21
14. Such other information specified with
respect to such Note (whether by Addendum
or otherwise).
B. The Company will assign a CUSIP number to the
Global Note representing such Note and then
advise the Trustee by facsimile transmission or
other electronic transmission (promptly
confirmed in writing) of the above settlement
information received from the Offering Agent,
such CUSIP number and the name of the Offering
Agent. The Company will also advise the
Offering Agent of the CUSIP number assigned to
the Global Note.
C. JPMorgan will communicate to DTC and the
Offering Agent through DTC's Participant
Terminal System a pending deposit message
specifying the following settlement
information:
1. The information set forth in the
Settlement Procedure A.
2. Identification numbers of the participant
accounts maintained by DTC on behalf of
JPMorgan and the Offering Agent.
3. Identification of the Global Note as a
Fixed Rate Global Note or Floating Rate
Global Note.
4. Initial Interest Payment Date for such
Note, number of days by which such date
succeeds the related record date for DTC
purposes (or, in the case of Floating Rate
Notes which reset daily or weekly, the
date five calendar days preceding the
Interest Payment Date) and, if then
calculable, the amount of interest payable
on such Interest Payment Date (which
amount shall have been confirmed by
JPMorgan).
5. CUSIP number of the Global Note
representing such Note.
6. Whether such Global Note represents any
other Notes issued or to be issued in
book-entry form.
DTC will arrange for each pending deposit
message described above to be transmitted to
Standard & Poor's Corporation, which will use
the information in the
D-22
message to include certain terms of the related
Global Note in the appropriate daily bond
report published by Standard & Poor's
Corporation.
D. The Trustee will complete and authenticate the
Global Note representing such Note.
E. DTC will credit such Note to the participant
account of JPMorgan maintained by DTC.
F. JPMorgan will enter an SDFS deliver order
through DTC's Participant Terminal System
instructing DTC (i) to debit such Note to
JPMorgan's participant account and credit such
Note to the participant account of the Offering
Agent maintained by DTC and (ii) to debit the
settlement account of the Offering Agent and
credit the settlement account of JPMorgan
maintained by DTC, in an amount equal to the
price of such Note less such Offering Agent's
discount or underwriting commission, as
applicable. Any entry of such a deliver order
shall be deemed to constitute a representation
and warranty by the Trustee to DTC that (i) the
Global Note representing such Note has been
issued and authenticated and (ii) JPMorgan is
holding such Global Note pursuant to the
Certificate Agreement.
G. In the case of Notes in book-entry form sold
through the Offering Agent, as agent, the
Offering Agent will enter an SDFS deliver order
through DTC's Participant Terminal System
instructing DTC (i) to debit such Note to the
Offering Agent's participant account and credit
such Note to the participant account of the
Participants maintained by DTC and (ii) to
debit the settlement accounts of such
Participants and credit the settlement account
of the Offering Agent maintained by DTC in an
amount equal to the initial public offering
price of such Note.
H. Transfers of funds in accordance with SDFS
deliver orders described in Settlement
Procedures F and G will be settled in
accordance with SDFS operating procedures in
effect on the Settlement Date.
I. Upon receipt, JPMorgan will pay the Company, by
wire transfer of immediately available funds to
an account specified by the Company to JPMorgan
from time to
D-23
time, the amount transferred to JPMorgan in
accordance with Settlement Procedure F.
J. JPMorgan will send a copy of the Global Note by
first class mail to the Company together with a
statement setting forth the principal amount of
Notes Outstanding as of the related Settlement
Date after giving effect to such transaction
and all other offers to purchase Notes of which
the Company has advised JPMorgan but which have
not yet been settled.
K. If such Note was sold through the Offering
Agent, as agent, the Offering Agent will
confirm the purchase of such Note to the
investor or other purchaser either by
transmitting to the Participant with respect to
such Note a confirmation order through DTC's
Participant Terminal System or by mailing a
written confirmation to such investor or other
purchaser.
Settlement Procedures
Timetable: For offers to purchase Notes accepted by the
Company, Settlement Procedures A through K set forth
above shall be completed as soon as possible
following the trade but not later than the
respective times (New York City time) set forth
below:
Settlement
Procedure Time
---------- ---------------------------------------
A 11:00 a.m. on the trade date or within
one hour following the trade
B 12:00 noon on the trade date or within
one hour following the trade
C No later than the close of business on
the trade date
D 9:00 a.m. on Settlement Date
E 10:00 a.m. on Settlement Date
F-G No later than 2:00 p.m. on Settlement
Date
D-24
H 4:00 p.m. on Settlement Date
I-K 5:00 p.m. on Settlement Date
Settlement Procedure H is subject to extension in
accordance with any extension of Fedwire closing
deadlines and in the other events specified in the
SDFS operating procedures in effect on the
Settlement Date.
If settlement of a Note issued in book-entry form is
rescheduled or canceled, JPMorgan will deliver to
DTC, through DTC's Participant Terminal System, a
cancellation message to such effect by no later than
5:00 p.m., New York City time, on the Business Day
immediately preceding the scheduled Settlement Date.
Failure to Settle: If JPMorgan fails to enter an SDFS deliver order
with respect to a Note issued in book-entry form
pursuant to Settlement Procedure F, JPMorgan may
deliver to DTC, through DTC's Participant Terminal
System, as soon as practicable a withdrawal message
instructing DTC to debit such Note to the
participant account of JPMorgan maintained at DTC.
DTC will process the withdrawal message, provided
that such participant account contains a principal
amount of the Global Note representing such Note
that is at least equal to the principal amount to be
debited. If withdrawal messages are processed with
respect to all the Notes represented by a Global
Note, the Trustee will xxxx 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
D-25
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
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-26
PART III: PROCEDURES FOR CERTIFICATED NOTES
Denominations: Unless otherwise provided in the applicable Pricing
Supplement, the Certificated Notes will be issued in
denominations of $25 or $1,000 and integral
multiples of such denominations in excess thereof.
Payments of Principal,
Premium, if any, and
Interest: Upon presentment and delivery of the Certificated
Note, the Trustee upon receipt of immediately
available funds from the Company will pay the
principal of, premium, if any, and interest on, each
Certificated Note on the Maturity Date in
immediately available funds. All interest payments
on a Certificated Note, other than interest due on
the Maturity Date, will be made by check mailed to
the address of the person entitled thereto as such
address shall appear in the Security Register at the
applicable Regular Record Date; provided, however,
that Holders shall be entitled to receive such
interest payments by wire transfer of immediately
available funds if appropriate wire transfer
instructions have been received in writing by the
Trustee not less than 15 calendar days prior to the
applicable Interest Payment Date.
The Trustee will provide monthly to the Company a
list of the principal, premium, if any, and interest
to be paid on Certificated Notes maturing in the
next succeeding month. The Trustee will be
responsible for withholding taxes on interest paid
as required by applicable law.
Certificated Notes presented to the Trustee on the
Maturity Date for payment will be canceled by the
Trustee. All canceled Certificated Notes held by the
Trustee shall be disposed of in accordance with its
customary procedures, and the Trustee shall furnish
to the Company a certificate with respect to such
disposition.
Settlement Procedures: Settlement Procedures with regard to each
Certificated Note purchased by an Agent, as
principal, or through an Agent, as agent, shall be
as follows:
D-27
A. The Offering Agent will advise the Company by
telephone of the following Settlement
information with regard to each Certificated
Note:
1. Exact name in which the Certificated
Note(s) is to be registered (the
"Registered Owner").
2. Exact address or addresses of the
Registered Owner for delivery, notices and
payments of principal, premium, if any,
and interest.
3. Taxpayer identification number of the
Registered Owner.
4. Principal amount, Authorized Denomination
and Specified Currency.
5. Exchange Rate Agent, if any.
6. (a) Fixed Rate Notes:
(i) Interest Rate.
(ii) Interest Payment Dates.
(iii) Whether such Note is being
issued with Original Issue
Discount and, if so, the terms
thereof.
(b) Floating Rate Notes:
(i) Interest Category.
(ii) Base Rate or Bases.
(iii) Initial Interest Rate.
(iv) Spread and/or Spread Multiplier,
if any.
(v) Initial Interest Reset Date and
Interest Reset Dates.
(vi) Interest Payment Dates.
D-28
(vii) Index Maturity, if any.
(viii) Maximum and/or Minimum
Interest Rates, if any.
(ix) Day Count Convention.
(x) Calculation Agent.
7. Price to public of such Certificated Note
(or whether such Note is being offered at
varying prices relating to prevailing
market prices at time of resale as
determined by the Offering Agent).
8. Trade Date.
9. Settlement Date (Original Issue Date).
10. Stated Maturity Date.
11. Redemption provisions, if any.
12. Repayment provisions, if any.
13. Default Rate, if any.
14. Net proceeds to the Company.
15. The Offering Agent's discount or
commission.
16. Whether such Note is being sold to the
Offering Agent as principal or to an
investor or other purchaser through the
Offering Agent acting as agent for the
Company.
17. Such other information specified with
respect to such Note (whether by Addendum
or otherwise).
B. After receiving such settlement information
from the Offering Agent, the Company will
advise the Trustee of the above settlement
information by facsimile transmission confirmed
by telephone (and promptly confirmed in writing
as well). The Company will cause the Trustee to
issue, authenticate and deliver the
Certificated Note.
D-29
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:
[notice provisions for Agents]
D-30
and the Trustee will keep Stub 1. The Offering
Agent will acknowledge receipt of the
Certificated Note through a broker's receipt
and will keep Stub 2. Delivery of the
Certificated Note will be made only against
such acknowledgment of receipt. Upon
determination that the Certificated Note has
been authorized, delivered and completed as
aforementioned, the Offering Agent will wire
the net proceeds of the Certificated Note after
deduction of its applicable commission to the
Company pursuant to standard wire instructions
given by the Company.
E. In the case of a Certificated Note sold through
the Offering Agent, as agent, the Offering
Agent will deliver such Certificated Note (with
the confirmation) to the purchaser against
payment in immediately available funds.
F. The Trustee will send Stub 3 to the Company.
Settlement Procedures
Timetable: For offers to purchase Certificated Notes accepted
by the Company, Settlement Procedures A through F
set forth above shall be completed as soon as
possible following the trade but not later than the
respective times (New York City time) set forth
below:
D-31
Settlement
Procedure Time
---------- ---------------------------------------
A 11:00 a.m. on the trade date or within
one hour following the trade
B 12:00 noon on the trade date or within
one hour following the trade
C-D 2:15 p.m. on Settlement Date
E 3:00 p.m. on Settlement Date
F 5:00 p.m. on Settlement Date
Failure to Settle: In the case of Certificated Notes sold through the
Offering Agent, as agent, if an investor or other
purchaser of a Certificated Note from the Company
shall either fail to accept delivery of or make
payment for such Certificated Note on the date fixed
for settlement, the Offering Agent will forthwith
notify the Trustee and the Company by telephone,
confirmed in writing, and return such Certificated
Note to the Trustee.
The Trustee, upon receipt of such Certificated Note
from the Offering Agent, will immediately advise the
Company and the Company will promptly arrange to
credit the account of the Offering Agent in an
amount of immediately available funds equal to the
amount previously paid to the Company by such
Offering Agent in settlement for such Certificated
Note. Such credits will be made on the Settlement
Date if possible, and in any event not later than
the Business Day following the Settlement Date;
provided that the Company has received notice on the
same day. If such failure shall have occurred for
any reason other than failure by such Offering Agent
to perform its obligations hereunder or under the
Distribution Agreement, the Company will reimburse
such Offering Agent on an equitable basis for its
reasonable loss of the use of funds during the
period when the funds were credited to the account
of the Company. Immediately upon receipt of the
Certificated Note in respect of which the failure
occurred, the Trustee will cancel and dispose of
such Certificated Note in accordance with its
customary procedures, make appropriate entries in
its records to reflect the fact that such
Certificated Note was never issued, and accordingly
notify in writing the Company.
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