POTOMAC ELECTRIC POWER COMPANY (a District of Columbia and Virginia corporation)
__________________________________________________________ |
(a District of Columbia and Virginia corporation) |
5.40% Senior Notes due June 1, 2035 |
Dated: May 24, 2005 |
__________________________________________________________ |
__________________________________________________________ |
Table of Contents |
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Page |
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SECTION 1. |
Representations and Warranties |
2 |
|
(a) |
Representations and Warranties by the Company |
2 |
|
(i) |
Compliance with Registration Requirements |
2 |
|
(ii) |
Incorporated Documents |
3 |
|
(iii) |
Independent Accountants |
3 |
|
(iv) |
Financial Statements |
3 |
|
(v) |
No Material Adverse Change in Business |
4 |
|
(vi) |
Good Standing of the Company |
4 |
|
(vii) |
No Significant Subsidiaries |
4 |
|
(viii) |
Capitalization |
4 |
|
(ix) |
Authorization of Agreement |
4 |
|
(x) |
Authorization of the Indenture |
4 |
|
(xi) |
Authorization of the Securities |
4 |
|
(xii) |
Authorization of the Mortgage |
4 |
|
(xii) |
Authorization of the Collateral Bonds |
5 |
|
(xiv) |
Description of the Securities, the Indenture, the Collateral Bonds and the Mortgage |
5 |
|
(xv) |
Absence of Defaults and Conflicts |
5 |
|
(xvi) |
Absence of Labor Dispute |
6 |
|
(xvii) |
Absence of Proceedings |
6 |
|
(xviii) |
Accuracy of Exhibits |
6 |
|
(xix) |
Absence of Further Requirements |
6 |
|
(xx) |
Possession of Licenses and Permits |
6 |
|
(xxi) |
Title to Property and Mortgaged Property |
7 |
|
(xxii) |
Lien of Mortgage |
7 |
|
(xxiii) |
Leases |
7 |
|
(xxiv) |
Investment Company Act |
7 |
|
(xxv) |
Environmental Laws |
8 |
|
(xxvi) |
Internal Controls |
8 |
|
(xxvii) |
Compliance with Sarbanes Oxley |
9 |
|
(b) |
Officer's Certificates |
9 |
|
SECTION 2. |
Sale and Delivery to Underwriters; Closing |
9 |
|
(a) |
Securities |
9 |
|
(b) |
Payment |
9 |
|
(c) |
Denominations; Registration |
9 |
|
(d) |
Delivery of Global Securities |
9 |
|
SECTION 3. |
Covenants of the Company |
10 |
|
(a) |
Compliance with Securities Regulations and Commission Requests |
10 |
|
(b) |
Delivery of Registration Statements |
10 |
|
(c) |
Delivery of Prospectuses |
10 |
|
(d) |
Continued Compliance with Securities Laws |
10 |
|
(e) |
Review of Amendments and Supplements |
11 |
|
(f) |
Blue Sky Qualifications |
11 |
|
(g) |
Rule 158 |
11 |
|
(h) |
Use of Proceeds |
11 |
|
(i) |
Restriction on Sale of Securities |
12 |
|
(j) |
Reporting Requirements |
12 |
|
i |
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SECTION 4. |
Payment of Expenses |
12 |
|
(a) |
Expenses |
12 |
|
(b) |
Termination of Agreement |
12 |
|
SECTION 5. |
Conditions of Underwriters' Obligations |
12 |
|
(a) |
Effectiveness of Registration Statement |
12 |
|
(b) |
Opinions of Counsel for Company |
13 |
|
(c) |
Opinion of Counsel for Underwriters |
13 |
|
(d) |
Officers' Certificate |
13 |
|
(e) |
Accountant's Comfort Letter |
13 |
|
(f) |
Maintenance of Rating |
13 |
|
(g) |
Additional Documents |
13 |
|
(h) |
Termination of Agreement |
13 |
|
SECTION 6. |
Indemnification |
14 |
|
(a) |
Indemnification of Underwriters |
14 |
|
(b) |
Indemnification of Company, Directors and Officers |
14 |
|
(c) |
Actions against Parties; Notification |
15 |
|
SECTION 7. |
Contribution |
15 |
|
SECTION 8. |
Representations, Warranties and Agreements to Survive |
16 |
|
SECTION 9. |
Termination of Agreement |
16 |
|
(a) |
Termination; General |
16 |
|
(b) |
Liabilities |
17 |
|
SECTION 10. |
Default by One or More of the Underwriters |
17 |
|
SECTION 11. |
Notices |
17 |
|
SECTION 12. |
Parties |
18 |
|
SECTION 13. |
Governing Law and Time |
18 |
|
SECTION 14. |
Counterparts |
18 |
|
SECTION 15. |
Effect of Headings |
18 |
|
SCHEDULES |
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Schedule A - List of Underwriters |
Sch A-1 |
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Schedule B - Pricing Information |
Sch B-1 |
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EXHIBITS |
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Exhibit A - Form of Opinion of Xxxx X. Xxxx, Esq. |
A-1 |
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Exhibit B - Form of Opinion of Xxxxxxxxx & Xxxxxxx |
B-1 |
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ii |
SCHEDULE A |
|
Name of Underwriter |
Principal |
Credit Suisse First Boston LLC |
56,656,250 |
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx |
56,656,250 |
Citigroup Global Markets Inc. |
9,625,000 |
Wachovia Capital Markets, LLC |
9,625,000 |
BNY Capital Markets, Inc. |
8,750,000 |
Xxxxxx Xxxxxxx & Co. Incorporated |
8,750,000 |
Lazard Capital Markets LLC |
5,687,500 |
KeyBanc Capital Markets, a Division of McDonald Investments Inc. |
5,687,500 |
SunTrust Capital Markets, Inc. |
5,687,500 |
X.X. Xxxxxx Securities Inc. |
2,625,000 |
Scotia Capital (USA) Inc. |
2,625,000 |
Greenwich Capital Markets, Inc. |
2,625,000 |
Total |
$175,000,000 |
Sch A-1 |
|
SCHEDULE B |
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$175,000,000 |
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5.40% Senior Notes due June 1, 2035 |
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1. The initial public offering price of the Securities shall be 99.646% of the principal amount thereof, plus accrued interest, if any, from the date of issuance. |
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2. The purchase price to be paid by the Underwriters for the Securities shall be 98.771% of the principal amount thereof. |
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3. The interest rate on the Securities shall be 5.40% per annum. |
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4. The Securities shall be redeemable as provided in the Prospectus. |
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Sch B-1 |
Exhibit A |
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Form of Opinion of Xxxx X. Xxxx, Esq. |
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[LETTERHEAD OF PEPCO] |
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June 1, 2005 |
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Credit Suisse First Boston LLC |
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Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated |
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as Representatives of the Several Underwriters |
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Ladies and Gentlemen: |
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I am General Counsel of Potomac Electric Power Company, a District of Columbia and Virginia corporation (the "Company"), and have acted as counsel to the Company in connection with the issuance and sale of $175,000,000 in aggregate principal amount of 5.40% Senior Notes due June 1, 2035 (the "Securities") pursuant to the Purchase Agreement, dated May 24, 2004, among the Company and Credit Suisse First Boston LLC and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, on their own behalf and on behalf of Citigroup Global Markets Inc., Wachovia Capital Markets, LLC, BNY Capital Markets, Inc., Xxxxxx Xxxxxxx & Co. Incorporated, Lazard Capital Markets LLC, Key Banc Capital Markets (a division of McDonald Investments Inc.), Sun Trust Capital Markets, Inc., X.X. Xxxxxx Securities Inc., Scotia Capital (USA) Inc. and Greenwich Capital Markets, Inc. (the "Purchase Agreement"). The Securities will be issued under an indenture, dated as of November 17, 2003, between the Company and The Bank of New York, as Trustee (the "Indenture"). In connection with the issuance and sale by the Company of the Securities, the Company will issue and deliver to the Trustee $175,000,000 in aggregate principal amount of its First Mortgage Bonds, 5.40% Collateral Series due June 1, 2035 (the "Collateral Bonds"). The Collateral Bonds will be issued under the Mortgage and Deed of Trust, dated as of July 1, 1936, from the Company to The Bank of New York (as successor trustee to The Xxxxx National Bank of Washington, D.C.), as trustee (the "Mortgage Trustee"), as amended and supplemented by various supplemental indentures including the supplemental indenture, dated as of May 24, 2005 (the "Supplemental Indenture"), establishing the terms of the Collateral Bonds (such Mortgage and Deed of Trust, as so amended and supplemented, the "Mortgage"). This opinion is being delivered to you in accordance with Section 5(b) of the Purchase Agreement. Capitalized terms not defined herein have the respective meanings set forth in the Purchase Agreement. |
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In connection with rendering the opinions set forth herein, I, or my representatives, have reviewed an executed copy of the Purchase Agreement and the Registration Statement on Form S-3, Registration No. 333-106209 (the "Registration Statement"). In addition, I, or my representatives, have reviewed the final prospectus, dated May 24, 2005 (the "Prospectus"), filed with the Securities and |
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A-1 |
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Exchange Commission (the "Commission") pursuant to Rule 424(b)(5) under the Securities Act of 1933, as amended (the "1933 Act"), the Indenture, the Mortgage, the Supplemental Indenture, a facsimile copy of the Securities furnished by the Trustee, and a facsimile copy of the Collateral Bonds furnished by the Mortgage Trustee. I, or my representatives, also have examined or caused to be examined originals, or copies that have been certified or otherwise identified to my or their satisfaction as being true copies, of such other instruments, certificates and other documents or records as I or they have deemed necessary or appropriate to enable me to render the opinions set forth below. In my or my representatives' review and examination, I or they have assumed the genuineness of all signatures, the authenticity of all documents submitted to me or them as originals, and the conformity to original documents of all documents submitted to me or them as copies. |
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Based upon the foregoing, and subject to the reservations and exceptions set forth herein, I am of the opinion that: |
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1. The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of each of the District of Columbia and the Commonwealth of Virginia. |
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2. The Company has corporate power and authority to own or 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 Purchase Agreement. |
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3. The Company is duly qualified as a foreign corporation to transact business and is in good standing in each 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 so to qualify or to be in good standing would not result in a Material Adverse Effect. |
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4. All of the shares of issued and outstanding capital stock of the Company have been duly authorized and validly issued and are fully paid and non-assessable and, except for shares of issued and outstanding preferred stock, are owned by Pepco Holdings, Inc. None of the outstanding shares of capital stock of the Company was issued in violation of the preemptive or other similar rights of any securityholder of the Company. |
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5. The Purchase Agreement has been duly authorized, executed and delivered by the Company. |
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6. The Indenture has been duly authorized, executed and delivered by the Company. |
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7. The Securities have been duly authorized and executed by the Company and when the Securities have been (A) authenticated and delivered by the Trustee under the Indenture and (B) issued and delivered by the Company against payment of the purchase price therefor as provided in the Purchase Agreement, the Securities will constitute valid securities within the meaning of Section 28:8-110(a)(1) of the District of Columbia Uniform Commercial Code and Section 8.8A-110(a)(1) of the Virginia Uniform Commercial Code. |
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8. The Mortgage has been duly authorized, executed and delivered by the Company and constitutes a valid and binding instrument of the Company, enforceable against the Company in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws of general applicability relating to or affecting mortgagees' and other creditors' rights and to general equity principles and except to the extent that the law of the jurisdictions in which the mortgaged property is located may limit or deny certain remedial provisions of the Mortgage. |
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A-2 |
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9. The Collateral Bonds are in the form contemplated by the Mortgage, have been duly authorized and executed by the Company, and when (A) the Collateral Bonds have been (w) authenticated and delivered by the Mortgage Trustee under the Mortgage and (x) issued and delivered by the Company to the Trustee as provided in the Indenture and (B) the Securities have been (y) authenticated and delivered by the Trustee under the Indenture and (z) issued and delivered by the Company against payment of the purchase price therefor as provided in the Purchase Agreement, the Collateral Bonds will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws of general applicability relating to or affecting creditors' rights and to general equity principles, and will be entitled to the benefits of the Mortgage. |
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10. The Registration Statement has been declared effective under the 1933 Act; and, to the best of my knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under Section 8(d) of the 1933 Act and no proceedings for that purpose have been instituted by the Commission or are pending or threatened by the Commission. The Prospectus has been filed in the manner and within the time period required by Rule 424(b) under the 1933 Act. |
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11. The documents incorporated by reference in the Prospectus (other than the financial statements, including the notes thereto, the financial schedules and the other financial data included or incorporated by reference therein, as to which I express no opinion), when they were filed with the Commission, complied as to form in all material respects with the requirements of the 1934 Act and the 1934 Act Regulations. |
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12. The execution, delivery and performance of the Indenture, the Mortgage and the Purchase Agreement and the issuance and sale of the Securities and the issuance and delivery of the Collateral Bonds and compliance with the terms thereof will not result in a breach or violation of any of the terms and provisions of, or constitute a default or Repayment Event under, or result in the creation or imposition of any Lien (other than the Lien of the Mortgage and the Lien of the Indenture) upon any property or assets of the Company under, (i) any statute, any rule, regulation or order of any governmental agency or body or any court having jurisdiction over the Company or any subsidiary of the Company or any of their properties that in my experience customarily applies to transactions of the type contemplated by the Purchase Agreement, the Indenture and the Securities, (ii) any agreement or instrument to which the Company or any such subsidiary is a party or by which the Company or any such subsidiary is bound or to which any of the properties of the Company or any such subsidiary is subject, or (iii) the articles of incorporation or by-laws of the Company or any such subsidiary, except, in the cases of clauses (i) and (ii) above, for any such breach, violation, or default that would not result in a Material Adverse Effect; and the Company has full corporate power and authority to authorize, issue and sell the Securities as contemplated by the Purchase Agreement. |
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13. Except as disclosed in the Prospectus, there is not pending or, to the best of my knowledge, threatened any action, suit, proceeding, inquiry or investigation, to which the Company or any of its subsidiaries is a party, or to which the property of the Company or any of its subsidiaries is subject, before or brought by any court or governmental agency or body, domestic or foreign, which could reasonably be expected to result in a Material Adverse Effect, or which could reasonably be expected to materially and adversely affect the consummation of the transactions contemplated in the Purchase Agreement or the performance by the Company of its obligations thereunder. |
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14. No consent, approval, authorization or order of, or filing with, any governmental agency or body or any court is required for the consummation of the transactions contemplated by the Purchase Agreement in connection with the offering, issuance, sale or delivery of the Securities and the Collateral Bonds by the Company, except such as have already been obtained or such as may be required |
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A-3 |
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under state securities laws, and the Company has complied, in all material respects, with all terms and conditions contained in all such consents, approvals, authorizations and orders as have been obtained. |
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15. The Company has good and marketable title to all real property owned by the Company and described in the Mortgage as subject to the lien thereof, subject only to such exceptions, defects and qualifications as do not (I) affect the value of any such properties that are material to the business of the Company in any material respect or (II) affect the use made or proposed to be made of such properties by the Company in any material respect; and the descriptions of all such property contained in the Mortgage are adequate for purposes of the lien purported to be created by the Mortgage. |
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16. The Mortgage constitutes a valid first lien or charge, to the extent that it purports to be such, upon the interest held by the Company in its property covered by the Mortgage, subject only to such exceptions, defects, qualifications and other matters as may be permitted by the Mortgage and to such other matters as in my opinion do not materially affect the security for the Collateral Bonds. The Mortgage (except for the Supplemental Indenture) has been duly recorded, and the Supplemental Indenture has been duly filed for recordation as a mortgage of real estate, in the only counties in which any real property subject to the lien of the Mortgage is located, and all requisite steps have been taken to perfect the security interest of the Mortgage in personal property of the Company; and all taxes and recording and filing fees required to be paid with respect to the execution, recording or filing of the Mortgage, the filing of financing statements and similar documents and the issuance of the Collateral Bonds have been paid. |
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I am not passing upon and do not assume responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement or the Prospectus and make no representations that I have independently verified the accuracy, completeness or fairness of such statements, except insofar as such statements refer specifically to me. However, based on my examination of the Registration Statement and the Prospectus, on my general familiarity with the affairs of the Company and on my participation in conferences with officials and other representatives of, and other counsel for, the Company, with PricewaterhouseCoopers LLP, the independent accountants of the Company, and with your representatives and your counsel, I do not believe that the Registration Statement (except for financial statements, including the notes thereto, financial schedules and other financial data included or incorporated by reference therein or omitted therefrom, as to all of which I express no belief), at the time such Registration Statement became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except as aforesaid with respect to the Registration Statement), at the time the Prospectus was issued, contained, or the Prospectus (except as aforesaid with respect to the Registration Statement) at the Closing Time contains, an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. |
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My opinion in paragraphs 8 and 9 above are subject to the following limitations and qualifications: |
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I express no opinion as to: |
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(i) |
waivers of defenses or other rights or benefits bestowed by operation of law; |
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(ii) |
releases or waivers of unmatured claims or rights; |
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(iii) |
provisions requiring amendments and waivers to be in writing; |
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A-4 |
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(iv) |
provisions making notices effective even if not actually received; or |
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(v) |
provisions purporting to make a party's determination conclusive. |
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I am a member of the Bar of the District of Columbia and the Bar of the State of Maryland, and I express no opinion herein as to any law other than the laws of the District of Columbia, the State of Maryland, the Commonwealth of Virginia, the Commonwealth of Pennsylvania and the federal law of the United States. With respect to the laws of the Commonwealth of Virginia (except as to such matters as relate expressly to the Company, are governed by the Virginia Stock Corporation Act and are expressly addressed herein) and the Commonwealth of Pennsylvania, I have received advice, satisfactory to me, from Virginia and Pennsylvania counsel admitted in such jurisdictions whom I deem fully competent to furnish such advice. |
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The opinions contained herein are rendered solely for your benefit and may not be relied on by any other person, except that I hereby authorize Xxxxx Xxxxxxxxxx LLP, in connection with rendering its opinion to you on the date hereof relating to the offer and sale of the Securities, to rely on this opinion with respect to matters governed by the laws of the District of Columbia, the State of Maryland, the Commonwealth of Virginia, and the Commonwealth of Pennsylvania. The opinions expressed in this letter are limited to the matters set forth herein, and no opinion should be inferred beyond those opinions expressly stated. I assume no obligation to advise you of any facts that come to my attention, or any changes in law, subsequent to the date hereof. |
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Very truly yours, |
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Xxxx X. Xxxx |
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A-5 |
Exhibit B |
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Form of Opinion of Xxxxxxxxx & Xxxxxxx |
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June 1, 2004 |
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Credit Suisse First Boston LLC |
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Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated |
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as Representatives of the Several Underwriters |
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Ladies and Gentlemen: |
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We have acted as special counsel to Potomac Electric Power Company, a District of Columbia and Virginia corporation (the "Company") in connection with the issuance and sale of $175,000,000 in aggregate principal amount of 5.40% Senior Notes due June 1, 2035 (the "Securities") pursuant the Purchase Agreement, dated May 24, 2005, among the Company and Credit Suisse First Boston LLC and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, on their own behalf and on behalf of Citigroup Global Markets Inc., Wachovia Capital Markets, LLC, BNY Capital Markets, Inc., Xxxxxx Xxxxxxx & Co. Incorporated, Lazard Capital Markets LLC, Key Banc Capital Markets (a division of McDonald Investments Inc.), Sun Trust Capital Markets, Inc., X.X. Xxxxxx Securities Inc., Scotia Capital (USA) Inc. and Greenwich Capital Markets, Inc. (the "Purchase Agreement"). The Securities will be issued under an indenture, dated as of November 17, 2003, between the Company and The Bank of New York, as Trustee (the "Indenture"). In connection with the issuance and sale by the Company of the Securities, the Company will issue and deliver to the Trustee $175,000,000 in aggregate principal amount of its First Mortgage Bonds, 5.40% Collateral Series due June 1, 2035 (the "Collateral Bonds"). The Collateral Bonds will be issued under the Mortgage and Deed of Trust, dated as of July 1, 1936, from the Company to The Bank of New York (as successor trustee to The Xxxxx National Bank of Washington, D.C.), as trustee (the "Mortgage Trustee"), as amended and supplemented by various supplemental indentures including the supplemental indenture, dated as of May 24, 2005 (the "Supplemental Indenture"), establishing the terms of the Collateral Bonds (such Mortgage and Deed of Trust, as so amended and supplemented, the "Mortgage"). This opinion is being delivered to you in accordance with Section 5(b) of the Purchase Agreement. Unless otherwise defined herein, capitalized terms used herein have the respective meanings provided in the Purchase Agreement. |
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We have reviewed: |
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(i) the Purchase Agreement; |
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(ii) a Registration Statement on Form S-3, Registration No. 333-106209, filed with the Securities and Exchange Commission (the "Commission") on June 18, 2003 (the "Registration Statement"), registering, inter alia, the Securities for sale under the Securities Act of 1933, as amended (the "1933 Act"); |
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B-1 |
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(iii) the final prospectus, dated May 24, 2005 (the "Prospectus") with respect to the offer and sale of the Securities, filed with the Commission pursuant to Rule 424(b)(5) under the 1933 Act: |
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(iv) the Indenture; |
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(v) the Mortgage; |
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(vi) a facsimile copy of the Securities furnished by the Trustee; and |
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(vii) a facsimile copy of the Collateral Bonds furnished by the Mortgage Trustee. |
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We also have reviewed such corporate records, certificates and other documents, and such questions of law, as we have deemed necessary or appropriate for the purposes of rendering this opinion. |
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We have assumed that all signatures are genuine, that all documents submitted to us as originals are authentic and that all copies of documents submitted to us conform to the originals. We have assumed further that (i) the Company is a corporation duly organized, validly existing and in good standing under the laws of the District of Columbia and the Commonwealth of Virginia and has all legal right, power and authority and has obtained all authorizations and approvals of governmental authorities necessary (A) to issue and sell the Securities, and (B) to execute, deliver and perform its obligations under the Purchase Agreement, the Indenture, the Supplemental Indenture, the Mortgage, the Securities and the Collateral Bonds, (ii) the issuance and sale of the Securities and the execution, delivery and performance by the Company of its obligations under the Purchase Agreement and the Securities have been duly authorized by the Company (except to the extent that authorization thereof is governed by the Virginia Stock Corporation Act of the Commonwealth of Virginia (the "VSCA") or the laws of the District of Columbia), (iii) the execution, delivery and performance by the Company of its obligations under the Indenture and the Supplemental Indenture have been duly authorized by the Company (except to the extent that authorization thereof is governed by the VSCA or the laws of the District of Columbia) and the Indenture and the Supplemental Indenture have been duly executed and delivered by the Company (except to the extent that the execution and delivery thereof is governed by the laws of the State of New York, the District of Columbia or the VSCA), (iv) the Securities and the Collateral Bonds have been duly executed by the Company (except to the extent that the execution thereof is governed by the laws of the State of New York, the District of Columbia or the VSCA) and will constitute valid securities within the meaning of Section 28:8-110(a)(1) of the District of Columbia Uniform Commercial Code and Section 8.8A-110(a)(1) of the Virginia Uniform Commercial Code, (v) the Purchase Agreement has been duly executed and delivered by the Company (except to the extent that the execution and delivery thereof is governed by the laws of the State of New York, the District of Columbia or the VSCA), (vi) the execution, delivery and performance by the Company of its obligations under the Mortgage has been duly authorized by the Company and the Mortgage has been duly executed and delivered by the Company, and (vii) the issuance and sale of the Collateral Bonds and the execution, delivery and performance by the Company of its obligations under the Collateral Bonds has been duly authorized by the Company (except to the extent that authorization thereof is governed by the VSCA or the laws of the District of Columbia). |
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We have made no investigation for the purpose of verifying the assumptions set forth herein. |
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Based upon the foregoing, and subject to the qualifications set forth below, we are of the opinion that: |
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1. The Purchase Agreement has been duly authorized, executed and delivered by the Company. |
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2. The Indenture has been duly authorized, executed and delivered by the Company and constitutes a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, |
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B-2 |
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moratorium and other laws of general applicability relating to or affecting creditors' rights and to general equity principles. The Indenture has been qualified under the Trust Indenture Act of 1939, as amended. |
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3. The Securities are in the form contemplated by the Indenture and have been duly authorized and executed by the Company, and when the Securities have been (A) authenticated and delivered by the Trustee under the Indenture and (B) issued and delivered by the Company against payment of the purchase price therefor as provided in the Purchase Agreement, the Securities will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws of general applicability relating to or affecting creditors' rights and to general equity principles, and will be entitled to the benefits of the Indenture. |
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4. The Supplemental Indenture has been duly authorized, executed and delivered by the Company. |
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5. The Mortgage constitutes a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws of general applicability relating to or affecting creditors' rights and to general equity principles and except to the extent that the law of the jurisdictions in which the mortgaged property is located may limit or deny certain remedial provisions of the Mortgage. |
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6. The Collateral Bonds are in the form contemplated by the Mortgage, have been duly authorized and executed by the Company, and when (A) the Collateral Bonds have been (w) authenticated and delivered by the Mortgage Trustee under the Mortgage and (x) issued and delivered by the Company to the Trustee as provided in the Indenture and (B) the Securities have been (y) authenticated and delivered by the Trustee under the Indenture and (z) issued and delivered by the Company against payment of the purchase price therefor as provided in the Purchase Agreement, the Collateral Bonds will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws of general applicability relating to or affecting creditors' rights and to general equity principles, and will be entitled to the benefits of the Mortgage. |
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7. The descriptions of the Securities, the Indenture, the Collateral Bonds and the Mortgage contained in the Prospectus are accurate in all material respects. |
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8. The Registration Statement has been declared effective by the Commission under the 1933 Act; the Prospectus has been filed in the manner and within the time period required by Rule 424(b) under the 1933 Act; and, to the best of our knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the 1933 Act and no proceedings for that purpose have been instituted or are pending or threatened by the Commission. |
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9. The Registration Statement and the Prospectus, in each case excluding the documents incorporated by reference therein, as of their respective effective or issue dates (other than the financial statements, including the notes thereto, the financial schedules and the other financial and statistical data included therein, as to which we express no opinion) complied as to form in all material respects with the requirements of the 1933 Act and the rules and regulations of the Commission under the 1933 Act. |
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10. The Company is not, and upon the issuance and sale of the Securities as contemplated by the Prospectus and the application of the net proceeds therefrom as described in the Prospectus, will not be, an "investment company" or an entity "controlled" by an "investment company," as such terms are defined in the Investment Company Act of 1940, as amended. |
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B-3 |
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In addition, in accordance with our understanding with the Company as to the scope of our services in connection with the offering of the Securities, as special counsel to the Company, we reviewed the Registration Statement and the Prospectus and participated in discussions with your representatives and those of the Company, your counsel and the Company's accountants. On the basis of the information which was reviewed by us in the course of the performance of the services referred to above, considered in the light of our understanding of the applicable law and the experience we have gained through our practice under the Federal securities laws, we confirm to you that nothing which came to our attention in the course of such review has caused us to believe that the Registration Statement, at the time the Registration Statement became effective, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date or as of the date hereof, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. |
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The limitations inherent in the independent verification of factual matters and the character of determinations involved in the registration process are such, however, that we do not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement or the Prospectus, except as specified in paragraph 7 above. Also, we do not express any opinion or belief as to the financial statements, including the notes thereto, the financial schedules and the other financial and statistical data included or incorporated by reference in the Registration Statement or the Prospectus. |
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Our opinions in paragraphs 2, 3, 5, and 6 above are subject to the following limitations and qualifications: |
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(a) We express no opinion as to: |
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(i) |
waivers of defenses or other rights or benefits bestowed by operation of law; |
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(ii) |
releases or waivers of unmatured claims or rights; |
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(iii) |
provisions requiring amendments and waivers to be in writing; |
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(iv) |
provisions making notices effective even if not actually received; or |
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(v) |
provisions purporting to make a party's determination conclusive. |
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(b) We express no opinion as to (i) the ownership of or title to any property, or as to the adequacy of any description of property or (ii) any security interest or lien or the perfection or priority thereof. |
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We are members of the bar of the District of Columbia and the State of New York. We do not express any opinion on any laws other than the laws of the State of New York and the District of Columbia, the Virginia Stock Corporation Act and, to the extent expressly referred to herein, the Federal laws of the United States. |
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This opinion is given solely for your benefit and may not be relied upon by any other person without our written consent, except that we hereby authorize Xxxxx Xxxxxxxxxx LLP, in connection with rendering its opinion to you on the date hereof relating to the offer and sale of the Securities, to rely on this opinion with respect to matters governed by the laws of the District of Columbia and the Virginia Stock Corporation Act. This opinion may not be disclosed to any other person without our written consent. |
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Very truly yours, |
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B-4 |