U.S. $2,490,000,000
DOMINION RESOURCES, INC.
Medium-Term Notes
Series B
DISTRIBUTION AGREEMENT
---------------------------
August 20, 2003
Merrill Lynch, Pierce, Fenner & Smith Lehman Brothers Inc.
Incorporated 745 Seventh Avenue
4 World Financial Center Floor 15 New York, New York 10019
New York, New York 10080 Attn: Fixed Income Syndicate/
Medium Term Note Desk
Banc of America Securities LLC McDonald Investments Inc.
9 West 57th Street 800 Superior Avenue
NY1-301-2M-01 Cleveland, Ohio 44114
New York, New York 10019
Credit Suisse First Boston LLC Morgan Stanley & Co. Incorporated
11 Madison Avenue 1585 Broadway
New York, New York 10010 New York, NY 10036
J.P. Morgan Securities Inc.
270 Park Avenue
New York, New York 10017
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 Merrill Lynch, Pierce, Fenner & Smith Incorporated, Banc
of America Securities LLC, Credit Suisse First Boston LLC, J.P. Morgan
Securities Inc., Lehman Brothers Inc., McDonald Investments Inc. and Morgan
Stanley & Co. Incorporated, 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
Merrill Lynch, Pierce, Fenner & Smith Incorporated, Banc of America Securities
LLC, Credit Suisse First Boston LLC, J.P. Morgan Securities Inc., Lehman
Brothers Inc., McDonald Investments Inc. and Morgan Stanley & Co. Incorporated,
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. $2,490,000,0001 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 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 August 1, 2003 (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.
333-106790) for the registration of debt securities, including the
Notes, junior subordinated debentures, trust preferred securities and
related guarantee, common stock, preferred stock, stock purchase
contracts and stock purchase units under the Securities Act of 1933, as
amended (the Securities Act), heretofore filed with the Securities and
Exchange Commission (the Commission), has been declared effective. The
registration statement, including all exhibits thereto, (and any
further registration statements which may be filed by the Company for
the purpose of registering additional Notes and in connection with
which this Agreement is included as an exhibit) and the prospectus
constituting a part of such registration statement, and any prospectus
supplement relating to the Notes, as from time to time amended or
supplemented by the filing of documents pursuant to the Securities Act,
the Securities Exchange Act of 1934, as amended (the Exchange Act) or
otherwise, are referred to herein as the "Registration Statement" and
the "Prospectus", respectively. As used herein, the terms "Registration
Statement" and "Prospectus" include all documents or portions thereof
(including any Current Report on Form 8-K) incorporated therein by
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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").
2
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 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
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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"); compliance by the Company with its obligations under
this Agreement, the Indenture and the Notes do not and will not,
whether with or without the giving of notice or lapse of time or both,
conflict with or constitute a breach of, or default under or result in
the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any subsidiary pursuant to any
contract, indenture, mortgage, deed of trust, loan or credit agreement,
note, lease or any other agreement or instrument, to which the Company
or any subsidiary is a party or by which it or any of them may be
bound, or to which any of the property or assets of the Company or any
subsidiary is subject (except for such conflicts, breaches or defaults
or liens, charges or encumbrances that would not have a Material
Adverse Effect), nor will such action result in any violation of the
provisions of the charter or bylaws of the Company or any subsidiary,
or any applicable law, statute, rule, regulation, judgment, order, writ
or decree of any government, government instrumentality or court,
domestic or foreign, having jurisdiction over the Company or any
subsidiary or any of their respective properties, assets or operations;
and the Company has full power and authority to authorize, issue and
sell the Notes as contemplated by this Agreement, except to the extent
that the issuance of some or all of the Notes may be restricted by the
overall limits on financings by the Company imposed under the
Commission Order No. 35-27406 (the 2001 Order), pursuant to the Public
Utility Holding Company Act of 1935, as amended (the 1935 Act), in
which case the Company will issue only an amount of Notes that is
authorized by the 2001 Order or by any other applicable 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,
4
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 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.
5
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 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
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* Or the equivalent of U.S. $25 or U.S. $1,000, as the case may be, in the
Specified Currency.
6
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 communication 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 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
7
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 RR Donnelley Financial, 1021 East Cary Street, Richmond, Virginia, at
9:00 a.m., Richmond, Virginia time, on August 20, 2003, 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
8
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,
Troutman Sanders LLP, including fees and disbursements incurred in
connection with qualifying the Notes under state securities or blue-sky
laws or investment laws (if and to the extent such qualification is
required by you or the Company), your reasonable out-of-pocket expenses
in connection with the transactions contemplated hereby and your
advertising expenses, which have been approved, in writing in advance,
by the Company.
(d) The Company will furnish you with copies of each further
amendment and supplement to the Prospectus in such quantities as you
may from time to time reasonably request. If at any time when the
delivery of the Prospectus shall be required by law in connection with
the sale of any Note, any event relating to or affecting the Company,
or of which the Company shall be advised in writing by you, shall
occur, which in the opinion of the Company or of your counsel should be
set forth in a supplement to or an amendment of the Prospectus in order
to make the Prospectus not misleading in the light of the circumstances
when it is delivered, or if for any other reason it shall be necessary
during such period to amend or supplement the Prospectus or any
document incorporated by reference in the Prospectus in order to comply
with the Securities Act, the Exchange Act or the Trust Indenture Act,
the Company forthwith will (i) notify you to suspend solicitation of
purchases of Notes and (ii) at its expense, prepare and furnish to you
a reasonable number of copies of the supplement or supplements or the
amendment or amendments to the Prospectus so that the Prospectus, as
supplemented or amended, will not contain any untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances when the
Prospectus is delivered, not misleading or which will effect any other
necessary compliance. During the period specified in the preceding
sentence, the Company will continue to prepare and file with the
Commission on a timely basis all documents or amendments required to be
filed by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of
the Exchange Act; provided, however, that the Company shall not file
its reports on Forms 10-Q or 10-K, including any amendments thereto
(other than amendments to Form 10-K filed solely pursuant to General
9
Instruction A to Form 11-K), without also furnishing copies thereof to
you and Troutman Sanders 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 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
10
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 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
Troutman Sanders 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
11
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 with respect to any filings on
Form 8-K that are incorporated by reference into the Registration
Statement and the Prospectus, compliance with this Section 7(c) shall
only be required if the Form 8-K contains information responsive to
Items 1, 2, 3 or 4 unless otherwise reasonably requested by the Agents
and agreed to by the Company, 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).
(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 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 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 only be required if the Form 8-K contains information
responsive to Items 1, 2, 3 or 4 unless otherwise reasonably requested
by the Agents and agreed to by the Company, 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
12
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.
(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 with respect to
any filings on Form 8-K that are incorporated by reference into the
Registration Statement and the Prospectus, compliance with this Section
7(g) shall only be required if the Form 8-K contains information
responsive to Items 1, 2, 3 or 4, unless otherwise reasonably requested
by the Agents and agreed to by the Company, 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
13
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 Troutman Sanders 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 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
14
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 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
15
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 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
16
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 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.
17
(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 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
18
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 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.
19
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., 120 Tredegar Street, Richmond,
Virginia 23219 (facsimile: (804) 819-2211).
[the rest of this page is left blank intentionally]
20
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: /s/ James P. Carney
---------------------------------------
Name: James P. Carney
-------------------------------------
Title: Assistant Treasurer
------------------------------------
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21
The foregoing agreement is
hereby confirmed and accepted,
as of the date first above written.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ Diane Kenna
-----------------------------------------
Authorized Signatory
Name: Diane Kenna
---------------------------------------
Title: _____________________________________
Address for Notices:
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
4 World Financial Center Floor 15
New York, New York 10080
Attention: Global Transaction Management Group
Telephone: (212) 449-7476
Facsimile: (212) 449-2234
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22
BANC OF AMERICA SECURITIES LLC
By: /s/ Peter J. Carbone
-----------------------------------------
Authorized Signatory
Name: Peter J. Carbone
---------------------------------------
Title: Vice President
--------------------------------------
Address for Notices:
Banc of America Securities LLC
9 West 57th Street
NY1-301-2M-01
New York, New York 10019
Attention: Transaction Management
Telephone: (212) 847-6603
Facsimile: (212) 847-5184
[the rest of this page is left blank intentionally]
23
CREDIT SUISSE FIRST BOSTON LLC
By: /s/ Julie A. Keogh
-----------------------------------------
Authorized Signatory
Name: Julie A. Keogh
---------------------------------------
Title: _____________________________________
Address for Notices:
Credit Suisse First Boston LLC
11 Madison Avenue
New York, New York 10010
Attention: Short and Medium Term Finance
Telephone: (212) 325-7198
Facsimile: (212) 743-5825
[the rest of this page is left blank intentionally]
24
J.P. MORGAN SECURITIES INC.
By: /s/ Maria Sramek
-----------------------------------------
Authorized Signatory
Name: Maria Sramek
---------------------------------------
Title: Vice President
--------------------------------------
Address for Notices:
J.P. Morgan Securities Inc.
270 Park Avenue, 7th Floor
New York, New York 10017
Attention: Transaction Execution Group
Telephone: (212) 834-5710
Facsimile: (212) 834-6702
[the rest of this page is left blank intentionally]
25
LEHMAN BROTHERS INC.
By: /s/ Martin Goldberg
-----------------------------------------
Authorized Signatory
Name: Martin Goldberg
---------------------------------------
Title: Senior Vice President
--------------------------------------
Address for Notices:
Lehman Brothers Inc.
745 Seventh Avenue
New York, New York 10019
Attention: Fixed Income Syndicate/Medium Term Note Desk
Telephone: (212) 526-9664
Facsimile: (212) 526-0943
[the rest of this page is left blank intentionally]
26
MCDONALD INVESTMENTS INC.
By: /s/ J.A Chinnici III
-----------------------------------------
Authorized Signatory
Name: J.A Chinnici III
---------------------------------------
Title: Managing Director
--------------------------------------
Address for Notices:
McDonald Investments Inc.
800 Superior Avenue
Cleveland, Ohio 44114
Attention: Debt Capital Markets
Telephone: (216) 443-2890
Facsimile: (216) 443-3801
[the rest of this page is left blank intentionally]
27
MORGAN STANLEY & CO. INCORPORATED
By: /s/ Harold J. Hendershot III
-----------------------------------------
Authorized Signatory
Name: Harold J. Hendershot III
---------------------------------------
Title: Executive Director
--------------------------------------
Address for Notices:
Morgan Stanley & Co. Incorporated
1585 Broadway
2nd Floor
New York, NY 10036
Attn: Manager - Continuously Offered Products
Telephone: (212) 761-4000
Facsimile: (212) 761-0780
with a copy to:
Morgan Stanley & Co. Incorporated
1585 Broadway
29th Floor
New York, NY 10036
Attn: Investment Banking Information Center
Telephone: (212) 761-8385
Facsimile: (212) 761-0260
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28
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.
120 Tredegar Street
Richmond, Virginia 23219
Attention: Treasurer
Re: Distribution Agreement dated August 20, 2003
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
TROUTMAN SANDERS LLP
DOMINION RESOURCES, INC.
U.S. $2,490,000,000 Medium-Term Notes, Series B
August 20, 2003
Merrill Lynch, Pierce, Fenner & Smith Lehman Brothers Inc.
Incorporated 745 Seventh Avenue
4 World Financial Center - Floor 15 New York, New York 10019
New York, New York 10080
Banc of America Securities LLC McDonald Investments Inc.
9 West 57th Street 800 Superior Avenue
NY1-301-2M-01 Cleveland, Ohio 44114
New York, New York 10019
Credit Suisse First Boston LLC Morgan Stanley & Co. Incorporated
11 Madison Avenue 1585 Broadway
New York, New York 10010 New York, NY 10036
J.P. Morgan Securities Inc.
270 Park Avenue
New York, New York 10017
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.
$2,490,000,000 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 August 20, 2003, 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,
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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 RR
Donnelley Financial, 1021 E. Cary Street, Richmond, Virginia, at which the
Company satisfied the conditions contained in Section 7 of the Distribution
Agreement which are required to be satisfied as of the Closing Date.
Based upon the foregoing, and having regard to legal considerations
which we deem relevant, as of the date hereof, we are of the opinion that:
A. The Company is a corporation duly incorporated and existing as a
corporation in good standing under the laws of Virginia and has the corporate
power to transact its business as described in the Prospectus.
B. The 2001 Order constitutes an appropriate order of the Commission
with respect to the sale of the Notes under the 1935 Act, on the terms and
conditions set forth in the Distribution Agreement and constitutes valid and
sufficient authorization for the sale of the Notes, subject to the overall
limits on financings by the Company imposed under the 2001 Order. No approval or
consent by any public regulatory body, other than the 2001 Order (subject to the
limitations on overall financings contained therein), 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
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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 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 August 20, 2003, 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
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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
Registration Statement or the Prospectus contains on the date hereof (in all
cases, excepting the financial statements and schedules and other financial
information, any pro forma financial information and notes thereto and the
Statement of Eligibility of the Trustee filed on Form T-1 under the Trust
Indenture Act, as any of them are included in the Registration Statement or
Prospectus or incorporated by reference therein, 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,
TROUTMAN SANDERS LLP
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EXHIBIT C
PROPOSED FORM OF OPINION
OF
MCGUIREWOODS LLP
DOMINION RESOURCES, INC.
U.S. $2,490,000,000 Medium-Term Notes, Series B
August 20, 2003
Merrill Lynch, Pierce, Fenner & Smith Lehman Brothers Inc.
Incorporated 745 Seventh Avenue
4 World Financial Center - Floor 15 New York, New York 10019
New York, New York 10080
Banc of America Securities LLC McDonald Investments Inc.
9 West 57th Street 800 Superior Avenue
NY1-301-2M-01 Cleveland, Ohio 44114
New York, New York 10019
Credit Suisse First Boston LLC Morgan Stanley & Co. Incorporated
11 Madison Avenue 1585 Broadway
New York, New York 10010 New York, NY 10036
J.P. Morgan Securities Inc.
270 Park Avenue
New York, New York 10017
Dear Ladies and Gentlemen:
The arrangements for issuance of up to U.S. $2,490,000,000 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 August 1, 2003 (such Indenture,
as supplemented, is referred to herein as the Indenture), pursuant to a
Distribution Agreement, dated August 20, 2003 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.
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We have examined originals, or copies certified to our satisfaction, of
such corporate records of the Company, indentures, agreements and other
instruments, certificates of public officials, certificates of officers and
representatives of the Company and of the Trustee, and other documents, as we
have deemed it necessary to require as a basis for the opinions hereinafter
expressed. As to various questions of fact material to such opinions, we have,
when relevant facts were not independently established, relied upon
certifications by officers of the Company, the Trustee and other appropriate
persons and statements contained in the Registration Statement hereinafter
mentioned. All legal proceedings taken as of the date hereof in connection with
the transactions contemplated by the Distribution Agreement have been
satisfactory to us.
On this basis, as of the date hereof, we are of the opinion that:
1. The Company has been duly incorporated and is validly existing as a
corporation under the laws of 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 1935 Act, 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, subject, in the case of the 1935 Act, to the
limitations on overall financings by the Company imposed by the 2001 Order. The
2001 Order (i) constitutes an appropriate order of the Commission with respect
to the sale of the Notes under the 1935 Act on the terms and conditions set
forth in the Distribution Agreement, (ii) has been issued, (iii) remains in
effect at this date and (iv) constitutes valid and sufficient authorization,
subject to the limitations on overall financings contained therein, 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
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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, 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. 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 August 20, 2003 (the Prospectus Supplement), 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, 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
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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 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 participated in due diligence conferences 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, other financial information and the
Statement of Eligibility of the Trustee on Form T-1 under the Trust Indenture
Act, as 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
C-4
or superseded by any statement in a subsequently filed Incorporated Document or
in the Registration Statement or Prospectus.
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 any person without our prior
written consent.
Very truly yours,
MCGUIREWOODS LLP
C-5
EXHIBIT D
DOMINION RESOURCES, INC.
ADMINISTRATIVE PROCEDURES
for Fixed Rate and Floating Rate Medium-Term Notes, Series B
(Dated as of August 20, 2003)
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 Company), to or through Merrill Lynch, Pierce, Fenner &
Smith Incorporated, Banc of America Securities LLC, Credit Suisse First Boston
LLC, J.P. Morgan Securities Inc., Lehman Brothers Inc., McDonald Investments
Inc. and Morgan Stanley & Co. Incorporated (each, an Agent and, collectively,
the Agents) pursuant to a Distribution Agreement, dated August 20, 2003 (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 August
1, 2003 (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
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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:
Merrill Lynch, Pierce, Fenner & Smith
Incorporated:
Merrill Lynch & Co.
Merrill Lynch Production Technologies
4 Corporate Place
Piscataway, New Jersey 08854
Attention: Prospectus Operations/Diane Walker
Telephone: (732) 878-6536
Facsimile: (732) 878-6481/6547
Email: mtnsuppl@na2.us.ml.com
----------------------
Banc of America Securities LLC:
Banc of America Securities LLC
9 West 57th Street
NY1-301-2M-01
New York, New York 10019
Attention: Transaction Management
Telephone: (212) 847-6603
Facsimile: (212) 847-5184
Email:
Credit Suisse First Boston LLC:
Credit Suisse First Boston LLC
11 Madison Avenue
New York, New York 10010
Attention: Short and Medium Term Finance
Telephone: (212) 325-7198
Facsimile: (212) 743-5825
Email:
D-8
J.P. Morgan Securities Inc.:
J.P. Morgan Securities Inc.
270 Park Avenue - 7th Floor
New York, New York 10017
Attention: Medium Term Note Desk
Telephone: (212) 834-4421
Facsimile: (212) 834-6081
Email:
Lehman Brothers Inc.:
Lehman Brothers Inc.
745 Seventh Avenue
New York, New York 10019
Attention: Fixed Income Syndicate/
Medium Term Note Desk
Telephone: (212) 526-9664
Facsimile: (212) 526-0943
With a copy to:
ADP Prospectus Services
For Lehman Brothers Inc.
1155 Long Island Avenue
Edgewood, New York 11717
Attention: Client Services Desk
Facsimile: (631) 254-7268
McDonald Investments Inc.:
McDonald Investments Inc.
800 Superior Avenue
Cleveland, Ohio 44114
Attention: Debt Capital Markets
Telephone: (216) 443-2890
Facsimile: (216) 443-3801
Email:
D-9
Morgan Stanley & Co. Incorporated:
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Attention: Medium-Term Note Trading Desk
Telephone: (212) 761-1248
Facsimile: (212) 761-8846
Email:
and if to the Trustee, to:
JPMorgan Chase Bank
Institutional Trust Services
4 New York Plaza - 15th Floor
New York, New York 10004
Attention: Carol Ng
Telephone: (212) 623-5233
Facsimile: (212) 623-6215
Email: carol.ng@jpmorgan.com
---------------------
and to:
Troutman Sanders LLP
1111 East Main Street
Richmond, Virginia 23219
Attention: F. Claiborne Johnston, Jr.,
Esquire
Telephone: (804) 697-1214
Facsimile: (804) 698-5108
In each instance that a Pricing Supplement is
prepared, the Offering Agent will provide a copy of
such Pricing Supplement to each investor or purchaser
of the relevant Notes or its agent. Pursuant to Rule
434 ("Rule 434") of the Securities Act of 1933, as
amended, the Pricing Supplement may be delivered
separately from the Prospectus. Outdated Pricing
Supplements (other than those retained for files)
will be destroyed.
Settlement: The receipt of immediately available funds by the
Company in payment for a Note and the authentication
and delivery of such Note shall, with respect to such
Note, constitute "settlement". Offers accepted by the
Company will be settled in three Business Days, or at
such time as the purchaser, the applicable Agent and
the Company shall agree, pursuant to the timetable
for settlement set forth in Parts II and III hereof
under "Settlement Procedure Timetable" with respect
to Global Notes and
D-10
Certificated Notes, respectively (each such date
fixed for settlement is hereinafter referred to as a
"Settlement Date"). If procedures A and B of the
applicable Settlement Procedures with respect to a
particular offer are not completed on or before the
time set forth under the applicable "Settlement
Procedures Timetable", such offer shall not be
settled until the Business Day following the
completion of settlement procedures A and B or such
later date as the purchaser and the Company shall
agree.
The foregoing settlement procedures may be modified
with respect to any purchase of Notes by an Agent as
principal if so agreed by the Company and such Agent.
Procedure for Changing
Rates or Other
Variable Terms: When a decision has been reached to change the
interest rate or any other variable term on any Notes
being sold by the Company, the Company will promptly
advise the Agents and the Trustee by facsimile
transmission and the Agents will forthwith suspend
solicitation of offers to purchase such Notes. The
Agents will telephone the Company with
recommendations as to the changed interest rates or
other variable terms. At such time as the Company
notifies the Agents and the Trustee of the new
interest rates or other variable terms, the Agents
may resume solicitation of offers to purchase such
Notes. Until such time, only "indications of
interest" may be recorded. Immediately after
acceptance by the Company of an offer to purchase
Notes at a new interest rate or new variable term,
the Company, the Offering Agent and the Trustee shall
follow the procedures set forth under the applicable
"Settlement Procedures".
Suspension of Solicitation;
Amendment or
Supplement: The Company may instruct the Agents to suspend
solicitation of offers to purchase Notes at any time.
Upon receipt of such instructions, the Agents will
forthwith suspend solicitation of offers to purchase
from the Company until such time as the Company has
advised the Agents that solicitation of offers to
purchase may be resumed. If the Company decides to
amend or supplement the Registration Statement or the
Prospectus (other than to establish or change
interest rates or formulas, maturities, prices or
other similar variable terms with respect to the
Notes), it will promptly advise the Agents and will
furnish the Agents and their counsel with copies of
the proposed
D-11
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
Merrill Lynch, Pierce, Fenner & Smith
Incorporated:
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
4 World Financial Center Floor 15
New York, New York 10080
Attention: Global Transaction Management Group
Telephone: (212) 449-7476
Facsimile: (212) 449-2234
Banc of America Securities LLC:
Banc of America Securities LLC
9 West 57th Street
NY1-301-2M-01
New York, New York 10019
Attention: Transaction Management
Telephone: (212) 847-6603
Facsimile: (212) 847-5184
Email:
Credit Suisse First Boston LLC:
Credit Suisse First Boston LLC
11 Madison Avenue
New York, New York 10010
Attention: Short and Medium Term Finance
Telephone: (212) 325-7198
Facsimile: (212) 743-5825
Email:
D-12
J.P. Morgan Securities Inc.:
J.P. Morgan Securities Inc.
270 Park Avenue - 7th Floor
New York, New York 10017
Attention: Medium Term Note Desk
Telephone: (212) 834-4421
Facsimile: (212) 834-6081
Email:
Lehman Brothers Inc.:
Lehman Brothers Inc.
745 Seventh Avenue
New York, New York 10019
Attention: Medium Term Note Desk
Telephone: (212) 526-9664
Facsimile: (212) 526-0943
McDonald Investments Inc.:
McDonald Investments Inc.
800 Superior Avenue
Cleveland, Ohio 44114
Attention: Debt Capital Markets
Telephone: (216) 443-2890
Facsimile: (216) 443-3801
Email:
Morgan Stanley & Co. Incorporated:
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Attention: Medium Term Note Trading Desk
Telephone: (212) 761-1248
Facsimile: (212) 761-8846
Email:
D-13
and if to the Trustee, to:
JPMorgan Chase Bank
Institutional Trust Services
4 New York Plaza - 15th Floor
New York, New York 10004
Attention: Carol Ng
Telephone: (212) 623-5233
Facsimile: (212) 623-6215
Email: carol.ng@jpmorgan.com
---------------------
and to:
Troutman Sanders LLP
1111 East Main Street
Richmond, Virginia 23219
Attention: F. Claiborne Johnston, Jr., Esquire
Telephone: (804) 697-1214
Facsimile: (804) 698-5108
In the event that at the time the solicitation of
offers to purchase from the Company is suspended
(other than to establish or change interest rates or
formulas, maturities, prices or other similar
variable terms with respect to the Notes) there shall
be any offers to purchase Notes that have been
accepted by the Company which have not been settled,
the Company will promptly advise the Offering Agent
and the Trustee whether such offers may be settled
and whether copies of the Prospectus as theretofore
amended and/or supplemented as in effect at the time
of the suspension may be delivered in connection with
the settlement of such offers. The Company will have
the sole responsibility for such decision and for any
arrangements which may be made in the event that the
Company determines that such offers may not be
settled or that copies of such Prospectus may not be
so delivered.
Delivery of Prospectus
and applicable
Pricing Supplement: A copy of the most recent Prospectus and the
applicable Pricing Supplement, which pursuant to Rule
434 may be delivered separately from the Prospectus,
must accompany or precede the earlier of (a) the
written confirmation of a sale sent to an investor or
other purchaser or its agent and (b) the delivery of
Notes to an investor or other purchaser or its agent.
D-14
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-15
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 August 20, 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-16
have been reserved for and relating to Global Notes
and the Company has delivered to each of JPMorgan and
DTC a 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-17
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-18
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 Moody's
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-19
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-20
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-21
(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-22
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-23
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-24
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-25
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 mark
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-26
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-27
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-28
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-29
(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-30
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:
Merrill Lynch, Pierce, Fenner & Smith
Incorporated:
Merrill Lynch Money Markets Clearance
55 Water Street - 3rd Floor Plaza Level
DTC New York Window
New York, New York 10041
Attention: Morna Noel
Telephone: (212) 855-2403
Facsimile: (212) 855-2457
Email:
Banc of America Securities LLC:
Banc of America Securities LLC
9 West 57th Street
NY1-301-2M-01
New York, New York 10019
Attention: Transaction Management
Telephone: (212) 847-6603
Facsimile: (212) 847-5184
Email:
D-31
Credit Suisse First Boston LLC:
Credit Suisse First Boston LLC
11 Madison Avenue
New York, New York 10010
Attention: Short and Medium Term Finance
Telephone: (212) 325-7198
Facsimile: (212) 743-5825
Email:
J.P. Morgan Securities Inc.:
J.P. Morgan Securities Inc. One
Chase Plaza - Level 5B New York,
New York 10005
Attention: Mr. Gary Saheed
Telephone: (212) 552-5558
Facsimile: (212) 552-5319
Email:
Lehman Brothers Inc.:
Lehman Brothers Inc.
745 Seventh Avenue
New York, New York 10019
Attention: Medium-Term Note Desk
Telephone: (212) 526-9664
Facsimile: (212) 526-0943
McDonald Investments Inc.:
McDonald Investments Inc.
800 Superior Avenue
Cleveland, Ohio 44114
Attention: Debt Capital Markets
Telephone: (216) 443-2890
Facsimile: (216) 443-3801
Email:
D-32
Morgan Stanley & Co. Incorporated:
Morgan Stanley & Co. Incorporated
Bank of New York
Dealer Clearance Department
One Wall Street - 3rd Floor - Window 3B
New York, New York 10005
Attention: For the Account of Morgan Stanley
& Co. Incorporated
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-33
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.
D-34