EXHIBIT 1(I)
VIRGINIA ELECTRIC AND POWER COMPANY
Senior Debt Securities
Series _, ____%, Due __________
FORM OF UNDERWRITING AGREEMENT
[Date]
[Name of Underwriter]
as Representative for
the Several Underwriters
named in Schedule II hereto
[Address of Representative]
Ladies and Gentlemen:
The undersigned, Virginia Electric and Power Company (the Company),
hereby confirms its agreement with the several Underwriters named in Schedule II
hereto (the Agreement) with respect to the sale to the several Underwriters of
certain of its Senior Debt Securities (the Senior Debt Securities) specified in
Schedule I hereto, and the public offering thereof by the several Underwriters,
upon the terms specified in Schedule I hereto.
1. Underwriters and Representative. The term "Underwriters" as used
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herein shall be deemed to mean the several persons, firms or corporations
(including the Representative hereinafter mentioned) named in Schedule II
hereto, and the term "Representative" as used herein shall be deemed to mean the
representative to whom this Agreement is addressed, who by signing this
Agreement represents that it has been authorized by the other Underwriters to
execute this Agreement on their behalf and to act for them in the manner herein
provided. If there shall be only one person, firm or corporation named in
Schedule II hereto, the term "Underwriters" and the term "Representative" as
used herein shall mean that person, firm or corporation. All obligations of the
Underwriters hereunder are several and not joint. Any action under or in respect
of this Agreement taken by the Representative will be binding upon all the
Underwriters.
2. Description of the Senior Debt Securities. Schedule I specifies the
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aggregate principal amount of the Senior Debt
Securities, the initial public offering price of the Senior Debt Securities, the
purchase price to be paid by the Underwriters, and any concession from the
initial public offering price to be allowed to dealers or brokers, and sets
forth the date, time and manner of delivery of the Senior Debt Securities and
payment therefor. Schedule I also specifies (to the extent not set forth in the
Registration Statement and Prospectus referred to below) the terms and
provisions for the purchase of such Senior Debt Securities. The Senior Debt
Securities will be issued under the Company's Senior Indenture dated as of June
1, 1998, as supplemented by a First Supplemental Indenture dated as of June 1,
1998, a Second Supplemental Indenture dated as of June 1, 1999, a Third
Supplemental Indenture, dated as of November 1, 1999 and to be further
supplemented by a Fourth Supplemental Indenture dated as of ____, ______.
3. Representations and Warranties of the Company. The Company
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represents and warrants to, and agrees with, the Underwriters that:
(a) A registration statement, No. 333-______ on Form S-3 for
the registration of the Senior Debt Securities under the Securities Act
of 1933, as amended (the Securities Act), heretofore filed with the
Securities and Exchange Commission (the Commission), a copy of which as
so filed has been delivered to you, has become effective. The
registration statement, including all exhibits thereto, as amended
through the date hereof, is hereinafter referred to as the
"Registration Statement"; the prospectus relating to the Senior Debt
Securities included in the Registration Statement, which prospectus is
now proposed to be supplemented by a supplement relating to the Senior
Debt Securities to be filed with the Commission under the Securities
Act, as so supplemented, is hereinafter referred to as the
"Prospectus". As used herein, the terms "Registration Statement",
"prospectus" and "Prospectus" include all documents (including any
Current Report on Form 8-K) incorporated therein by reference, and
shall include any documents (including any Current Report on Form 8-K)
filed after the date of such Registration Statement, prospectus 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 Securities Exchange Act of 1934, as amended
(the Securities Exchange Act), the Trust Indenture Act of 1939, as
amended (the Trust Indenture Act), and the rules, regulations and
releases of the Commission thereunder (the Rules and Regulations) and,
on the date hereof, neither the Registration Statement nor the
Prospectus contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary
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to make the statements therein not misleading, and, on the Closing
Date, the Registration Statement and the Prospectus (including any
amendments and supplements thereto) will conform in all respects to the
requirements of the Securities Act, the Trust Indenture Act and the
Rules and Regulations, and neither of such documents will include any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading; provided, that the foregoing representations
and warranties in this Section (b) shall not apply to statements in or
omissions from the Registration Statement or the Prospectus made in
reliance upon information furnished herein or in writing to the Company
by the Underwriters or on the Underwriters' behalf for use in the
Registration Statement or Prospectus or the part of the Registration
Statement which constitutes the Trustee's Statement of Eligibility
under the Trust Indenture Act (the "Form T-1"); 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 the statement has been modified or superseded by any statement in a
subsequently filed Incorporated Document or in the Registration
Statement or Prospectus or in any amendment or supplement thereto.
(c) Deloitte & Touche LLP, who have examined 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 of the Commission thereunder.
(d) Except as reflected in, or contemplated by, the
Registration Statement and Prospectus, since the respective most recent
dates as of which information is given in the Registration Statement
and Prospectus, there has not been any material adverse change in the
condition of the Company, financial or otherwise.
The Company has no material contingent financial obligation
that is not disclosed in each of the Registration Statement and
Prospectus
(e) 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 herein contemplated
and the fulfillment of the terms hereof. The execution, delivery and
performance of this the Indenture and Agreement and the issuance and
sale of the Senior Debt Securities and compliance with the terms and
provisions thereof will not result in a material breach or violation of
any of the terms and provisions of, or constitute a default under, any
statute, rule, regulation or order of any governmental agency or body
or any court having jurisdiction over the Company or any subsidiary or
any of their properties or any agreement or instrument to which the
Company is [now a party, or the charter of the Company, as amended or
any order, rule or regulation applicable to the Company of any federal
or state regulatory board or body or administrative agency having
jurisdiction over the Company or over its property.] a party or by
which the Company is bound or to which any of the properties of the
Company is subject, or the articles of incorporation or bylaws of the
Company, and the Company has full power and authority to authorize,
issue and sell the Senior Debt Securities as contemplated by this
Agreement.
(f) The Senior Debt Securities, upon issuance thereof, will
conform in all respects to the terms of the relevant order or orders of
the State Corporation Commission of Virginia (the "Virginia
Commission") now or hereafter in effect with respect to the Senior Debt
Securities.
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4. Public Offering. On the basis of the representations and warranties
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herein contained, but subject to the terms and conditions in this Agreement set
forth, the Company agrees to sell to each of the several Underwriters, and each
Underwriter agrees, severally and not jointly, to purchase from the Company, at
the price, place and time hereinafter specified, the principal amount of the
Senior Debt Securities set forth opposite the name of such Underwriter in
Schedule II hereto. The several Underwriters agree to make a public offering of
their respective Senior Debt Securities specified in Schedule II hereto at the
initial public offering price specified in Schedule I hereto. It is understood
that after such initial offering the several Underwriters reserve the right to
vary the offering price and further reserve the right to withdraw, cancel or
modify such offering without notice.
5. Time and Place of Closing. Delivery of the Senior Debt Securities
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to, and payment therefor by, the Representative for the accounts of the several
Underwriters shall be made at the time, place and date specified in Schedule I
or such other time, place and date as the Representative and the Company may
agree upon in writing, and subject to the provisions of Section 10 hereof. The
hour and date of such delivery and payment are herein called the "Closing Date".
Unless otherwise specified in Schedule I hereto, payment for the Senior Debt
Securities shall be made by wire transfer of immediately available funds to the
Company's account on the Closing Date against delivery of the Senior Debt
Securities, in fully registered form, Cede & Co., as nominee for The Depository
Trust Company. The certificate(s) for the Senior Debt Securities will be made
available at the location specified on Schedule I for examination by the
Representatives not later than 12:00 noon, New York time, on the last business
day prior to the Closing Date.
6. Covenants of the Company. The Company agrees that:
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(a) The Company, at or prior to the Closing Date, will deliver to
the Representative conformed copies of the Registration Statement as
originally filed, including all exhibits, any related preliminary
prospectus supplement, the Prospectus and all amendments and
supplements to each such document, in each case as soon as available
and in such quantities as are reasonably requested by the
Representative.
(b) The Company will pay all expenses in connection with (i)
the preparation and filing by it of the Registration Statement and
Prospectus and the printing of this Agreement, (ii) the preparation,
issue and delivery of certificates for the Senior Debt Securities,
(iii) any fees and expenses of the Trustee and (iv) the printing and
delivery to the Underwriters in reasonable quantities of copies of the
Registration Statement and the Prospectus (each as originally filed and
as subsequently amended). The Company also will pay all taxes, if any,
except transfer taxes, on the issue of the Senior Debt Securities. In
addition, the Company will pay the reasonable out of pocket fees and
disbursements of Underwriters' outside counsel, [Underwriters'
Counsel], in connection with the qualification of the Senior Debt
Securities under state securities or blue sky laws or investment laws
(if and to the extent such qualification is required by the
Underwriters or the Company).
(c) If, during the time when a prospectus relating to the
Senior Debt Securities is required to be delivered under the Act, any
event occurs as a result of which the Prospectus
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as then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, or if it is necessary at any time to amend
the Prospectus to comply with the Act, the Company promptly will (i)
notify the Representative to suspend solicitation of purchases of the
Senior Debt Securities and (ii) at its expense, prepare and file with
the Commission an amendment or supplement which will correct such
statement or omission or an amendment which will effect such
compliance. [and (iii) at its expense, furnish to the Representative a
reasonable quantity of the prospectus as so supplemented or amended] In
case any Underwriter is required to deliver a prospectus in connection
with the sale of any Senior Debt Securities after the expiration of the
period specified in the preceding sentence, the Company, upon the
request of the Representative, will furnish to the Representative, at
the expense of such Underwriter, a reasonable quantity of a
supplemented or amended prospectus, or supplements or amendments to the
Prospectus, complying with Section 10(a) of the Securities Act. During
the period specified in the second sentence of this Section 6(c), the
Company will continue to prepare and file with the Commission on a
timely basis all documents or amendments required under the Securities
Exchange Act and the applicable rules and regulations of the Commission
thereunder; provided, that the Company shall not file such documents or
amendments without also furnishing copies thereof to the Representative
and [Underwriters' Counsel].
(d) The Company will advise the Representative promptly of any
proposal to amend or supplement the Registration Statement or the
Prospectus and will afford the Representative a reasonable opportunity
to comment on any such proposed amendment or supplement; [As soon as
the Company is advised thereof, it will advise the Representative of
the issuance of any stop order under the Securities Act with respect to
the Registration Statement or any part thereof, or] and the Company
will also advise the Representative promptly of the filing of any such
amendment or supplement and of the institution by the Commission of any
stop order proceedings in respect of the Registration Statement or of
any part thereof and will use its best efforts to prevent the issuance
of any such stop order and to obtain as soon as possible its lifting,
if issued.
(e) The Company will make generally available to its security
holders, as soon as it is practicable to do so, an earnings statement
of the Company (which need not be audited) in reasonable detail,
covering a period of at least 12 months beginning within three months
after the effective date of the Registration Statement, which earnings
statement shall satisfy the requirements of Section 11(a) of the
Securities Act.
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(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 required of it
to the delivery by it of the Senior Debt Securities.
(h) The Company will furnish such proper information as may be
lawfully required and otherwise cooperate in qualifying the Senior Debt
Securities for offer and sale under the securities or blue sky laws of
such states as the Representative 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 which it deems unduly
burdensome.
(i) Fees and disbursements of [Underwriters' Counsel] who are
acting as counsel for the Underwriters (exclusive of fees and
disbursements of such counsel which are to be paid as set forth in
Section 6(b)), shall be paid by the Underwriters; provided, however,
that if this Agreement is terminated in accordance with the provisions
of Sections 7 or 8 hereof, the Company shall reimburse the
Representative for the account of the Underwriters for the amount of
such fees and disbursements.
7. Conditions of Underwriters' Obligations; Termination by the
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Underwriters.
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(a) The obligations of the Underwriters to purchase and pay
for the Senior Debt Securities 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. The Representative shall have
received, prior to payment for the Senior Debt Securities, a
certificate dated the Closing Date and signed by any Chief
Executive Officer, any Chief Financial Officer, any
Executive Vice President or any Senior Vice President of the
Company to the effect that no such stop order is in effect
and that no proceedings for such purpose are pending before
or, to the knowledge of the Company, threatened by the
Commission.
(ii) At the Closing Date an order or orders of the
Commission pursuant to the Holding Company Act permitting the
issuance and sale of the Senior Debt Securities shall be in
full force and effect and all provisions of such order or
orders heretofore entered are deemed acceptable to the
Representative and the Company, and all provisions of such
order or orders hereafter entered shall be deemed acceptable
to the Representative and the Company unless within 24 hours
after receiving a copy of any such order either shall give
notice to the other to the effect that such order contains an
unacceptable provision.
(iii) At the Closing Date the Representative shall
receive, on behalf of the several Underwriters, the opinions
of ▇▇▇▇▇▇▇, ▇▇▇▇▇, Battle & ▇▇▇▇▇▇, LLP., counsel to the
Company and [Underwriters' Counsel], counsel
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to the Underwriters, substantially in the forms attached
hereto as Schedules III and IV.
(iv) On the date of this Agreement and on the Closing
Date, the Representative shall have received from Deloitte &
Touche LLP a letter addressed to the Representative, dated
the date of this Agreement and the Closing Date,
respectively, (A) confirming that they are independent public
accountants as required by the Securities Act; (B) stating in
effect that, in their opinion, the audited financial
statements included in or incorporated by reference in the
Registration Statement and the Prospectus and audited by them
as stated in their report incorporated by reference in the
Registration Statement (the Audited Financial Statements),
comply as to form in all material respects with the
applicable accounting requirements adopted pursuant to the
Securities Exchange Act; (C) stating, in effect, that on the
basis of a reading of the minutes of the meetings of the
Board of Directors of the Company and of committees of the
Board since the end of the period covered by the Audited
Financial Statements, a reading of the unaudited financial
statements incorporated by reference in the Prospectus (if
any), of the unaudited statement of income for any interim
period for which information is included in the Prospectus
under the caption "Selected Financial Information" or any
section updating such information, and of the latest
available unaudited financial statements of the Company
covering a period of twelve months ending after the end of
the period covered by the Audited Financial Statements (if
any), and inquiries of officials of the Company responsible
for financial and accounting matters (which procedures did
not constitute an audit made in accordance with generally
accepted auditing standards), nothing came to their attention
that caused them to believe that such unaudited financial
statements incorporated by reference in the Prospectus are
not in conformity with generally accepted accounting
principles applied on a basis substantially consistent with
that of the Audited Financial Statements; and (D) stating, in
effect, that on the basis of more limited procedures than
those set forth in the foregoing clause (C), consisting
merely of the reading of the minutes referred to in said
clause and inquiries of officials of the Company responsible
for financial and accounting matters, nothing came to their
attention at a date not more than five business days prior to
the date of such letter that caused them to believe that (1)
at such date there was any decrease in common stockholder's
equity or any increase in funded debt of the Company or any
decrease in net assets as compared with the amounts shown in
the balance sheet included in the most recent financial
statements incorporated by reference, or (2) for the period
from the date of the most recent unaudited financial
statements included or incorporated by reference in the
Registration Statement and the Prospectus to a date not more
than five business days prior to the date of such letter
there were any decreases, as compared with the corresponding
period in the preceding year, in the operating revenues,
operating income or net income, except (with respect to (1)
or (2)) in all instances for changes or
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decreases that the Registration Statement discloses have
occurred or may occur; provided, however, that said letters
may vary from the requirements specified in clause (D) hereof
in such manner as the Representative in its sole discretion
may deem to be acceptable. Said letters shall also state that
the dollar amounts, percentages and other financial
information (in each case to the extent that such dollar
amounts, percentages and other financial information, either
directly or by analysis or computation, are derived from the
general accounting records of the Company) that appear (1) in
the Prospectus under the captions "Selected Financial
Information" and "Other Selected Data" and under any caption
contained in a supplement to the Prospectus updating such
dollar amounts, percentages and other financial information
(limited to total assets and plant expenditures), (2) in the
Company's most recent Annual Report on Form 10-K under the
caption "Selected Financial Data" or (3) in the Registration
Statement under the caption "Ratio of Earnings to Fixed
Charges" have been compared with the general accounting
records of the Company and such dollar amounts, percentages
and financial information have been found to be in agreement
with the accounting records of the Company and the
computations have been found to be arithmetically correct.
Each such letter shall relate to the Registration Statement
and Prospectus as amended or supplemented to the date of each
such letter.
(v) Subsequent to the execution of this Agreement and
prior to the Closing Date, (A) except as reflected in, or
contemplated by, the Registration Statement and the
Prospectus, there shall not have occurred (1) any change in
the Senior Debt Securities of the Company (other than a
decrease in the aggregate principal amount thereof
outstanding), (2) any material adverse change in the general
affairs, financial condition or earnings of the Company or
(3) any material transaction entered into by the Company
other than a transaction in the ordinary course of business,
the effect of which in each such case in the judgment of the
Representative is so material and so adverse that it makes it
inadvisable to proceed with the public offering or delivery
of the Senior Debt Securities on the terms and in the manner
contemplated in the Prospectus and this Agreement, or (B)
there shall not have occurred (1) a downgrading in the rating
accorded the Company's senior unsecured notes 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), (2) any general
suspension of trading in securities on the New York Stock
Exchange or any material limitation on prices for such
trading or any restrictions on the distribution of securities
established by the New York Stock Exchange or by the
Commission or by any federal or state agency or by the
decision of any court, (3) a banking moratorium declared
either by federal or New York State authorities or (4) any
outbreak or escalation of major hostilities in which the
United States is involved, any declaration of war by the
United States Congress or any other substantial national or
international calamity or crisis resulting in the declaration
of a national
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emergency, the effect of which outbreak, escalation,
declaration, calamity or crisis, in the reasonable judgment
of the Representative, makes it impracticable or inadvisable
to proceed with the public offering or delivery of the Senior
Debt Securities on the terms and in the manner contemplated
in the Prospectus and in this Agreement.
(vi) On the Closing Date, the representations and
warranties of the Company in this Agreement shall be true and
correct as if made on and as of such date, and the Company
shall have performed all obligations and satisfied all
conditions required of it under this Agreement; and, at the
Closing Date, the Representative shall have received a
certificate to such effect signed by any Chief Executive
Officers, any Chief Financial Officer, any Executive Vice
President or any Senior Vice President of the Company.
(vii) All legal proceedings to be taken in connection with
the issuance and sale of the Senior Debt Securities shall
have been satisfactory in form and substance to
[Underwriters' Counsel].
(b) In case any of the conditions specified above in
Section 7(a) shall not have been fulfilled, this Agreement may be
terminated by the Representative upon mailing or delivering written
notice thereof to the Company; provided, however, that in case the
conditions specified in subsections 7(a)(v) and (vi) shall not have
been fulfilled, this Agreement may not be so terminated by the
Representative unless Underwriters who have agreed to purchase in
the aggregate greater than 50% or more of the aggregate principal
amount of the Senior Debt Securities shall have consented to such
termination and the aforesaid notice shall so state. Any such
termination shall be without liability of any party to any other
party except as otherwise provided in Section 9 and Sections 6(b),
6(g) and 7(c) hereof.
(c) If this Agreement shall be terminated by the
Representative pursuant to Section 7(b) above or because of any
failure or refusal on the part of the Company to comply with the
terms or to fulfill any of the conditions of this Agreement, or if
for any reason the Company shall be unable to perform its
obligations under this Agreement, then in any such case, the Company
will reimburse the Underwriters, severally, for all out-of-pocket
expenses (in addition to the fees and disbursements of their outside
counsel as provided in Section 6(g)) reasonably incurred by such
Underwriters in connection with this Agreement or the offering
contemplated hereunder and, upon such reimbursement, the Company
shall be absolved from any further liability hereunder, except as
provided in Section 6(b) and Section 9.
8. Conditions of the Obligation of the Company. The obligation of the
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Company to deliver the Senior Debt Securities shall be subject to the conditions
set forth in the first sentence of Section 7(a)(i) and in Section 7(a)(ii). In
case said conditions shall not have been fulfilled, this Agreement may be
terminated by the Company by mailing or delivering written notice thereof to the
Representative. Any such termination shall be without liability of any party to
any other party except as otherwise provided in Sections 6(b), 6(g), 9 and 10(c)
hereof.
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9. Indemnification. (a) The Company agrees to indemnify and hold
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harmless each Underwriter and each person who controls any Underwriter within
the meaning of Section 15 of the Securities Act or Section 20(a) of the
Securities 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 Securities Exchange Act, or any other statute or
common law and to reimburse each such Underwriter and controlling person for any
legal or other expenses (including, to the extent hereinafter provided,
reasonable outside counsel fees) incurred by them in connection with
investigating 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, or in either such document as amended
or supplemented (if any amendments or supplements thereto shall have been
furnished), or any Preliminary Prospectus (if and when used prior to the
effective date of the Registration Statement), 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
foregoing agreement, insofar as it relates to any Preliminary Prospectus, shall
not inure to the benefit of any Underwriter (or to the benefit of any person who
controls such Underwriter) on account of any losses, claims, damages or
liabilities arising out of the sale of any of the Senior Debt Securities by such
Underwriter to any person if it shall be established that a copy of the
Prospectus, excluding any documents incorporated by reference (as supplemented
or amended, if the Company shall have made any supplements or amendments which
have been furnished to the Representative), shall not have been sent or given by
or on behalf of such Underwriter to such person at or prior to the written
confirmation of the sale to such person in any case where such delivery is
required by the Securities Act, if the misstatement or omission leading to such
loss, claim, damage or liability was corrected in the Prospectus (excluding any
documents incorporated by reference) as amended or supplemented, and such
correction would have cured the defect giving rise to such loss, claim, damage,
or liability; and provided further, however, that the indemnity agreement
contained in this Section 9(a) 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 herein or otherwise in writing to the Company by or on behalf of any
Underwriter for use in the Registration Statement or any amendment thereto, in
the Prospectus or any supplement thereto, or in any Preliminary Prospectus. The
indemnity agreement of the Company contained in this Section 9(a) and the
representations and warranties of the Company contained in Section 3 hereof
shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or any such controlling
person, and shall survive the delivery of the Senior Debt Securities.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its officers and directors, each other
Underwriter, and each person who controls any thereof within the meaning of
Section 15 of the Securities Act or Section 20(a) of the Securities 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 Securities 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 any such losses, claims, damages or liabilities or
in connection with
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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, or in either such document as amended
or supplemented (if any amendments or supplements thereto shall have been
furnished), or any Preliminary Prospectus (if and when used prior to the
effective date of the Registration Statement), 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 herein or in writing to
the Company by or on behalf of such Underwriter for use in the Registration
Statement or the Prospectus or any amendment or supplement to either thereof, or
any Preliminary Prospectus. The indemnity agreement of the respective
Underwriters 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 other Underwriter or any such controlling person, and shall
survive the delivery of the Senior Debt Securities.
(c) The Company and each of the Underwriters agrees 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
such Underwriter or controlling person as aforesaid, in respect of which
indemnity may be sought on account of any indemnity agreement contained herein,
it 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 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 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 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 such 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, 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 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 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
11
effected without its written consent (such consent not to be unreasonably
withheld), but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened proceeding
in respect of which indemnification may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such a proceeding), unless
such settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such proceeding.
(d) If the indemnification provided for in this Section 9 is
unavailable to or insufficient to hold harmless an indemnified party 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 by 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 the Underwriters, on the other, in connection with the statements or
omissions that 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 and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and you agree that it would not be just and
equitable if contribution pursuant to this Section 9(d) were determined by pro
rata allocation 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 Underwriters' obligations under this Section
9(d) to contribute are several in proportion to their respective underwriting
obligations and not joint.
10. Termination by the Company. If any one or more of the Underwriters
--------------------------
shall fail or refuse to purchase the Debt which it or they have agreed to
purchase hereunder, and the aggregate principal amount of the Senior Debt
Securities which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase is not more than one-tenth of the aggregate principal
amount of the Senior Debt Securities, then the other Underwriters shall be
obligated severally in the proportions which the principal amount of the Senior
Debt Securities set forth opposite their respective names in Schedule II bears
to the aggregate underwriting obligations of all non-defaulting Underwriters, or
in such other proportions as the Underwriters may specify, to purchase the
Senior Debt Securities which such defaulting Underwriter or Underwriters agreed
but failed or refused to purchase. If any Underwriter or Underwriters shall so
fail or refuse to purchase Senior Debt Securities and the aggregate principal
amount of the Senior Debt Securities with respect to which such default occurs
is more than one-tenth of the aggregate principal amount of the Senior
12
Debt Securities and arrangements satisfactory to the Underwriters and the
Company for the purchase of such Senior Debt Securities are not made within 36
hours after such default, this Agreement will terminate without liability on the
part of any non-defaulting Underwriter (except as provided in Section 6(g) and
Section 9) or of the Company (except as provided in Section 6(b) and Section 9).
In any such case not involving a termination, either the Representative or the
Company shall have the right to postpone the Closing Date, but in no event for
longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this Section 10 shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
11. 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 hereto
shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of any Underwriter or any controlling person
of any Underwriter, or by or on behalf of the Company, and shall survive
delivery of the Senior Debt Securities.
12. 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 the benefit of the Company, the Underwriters and, with respect to the
provisions of Section 9 hereof, 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 other 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 purchaser, as such, of any of the Senior
Debt Securities from any of the several Underwriters.
13. Notices. All communications hereunder shall be in writing and if to
-------
the Underwriters shall be mailed, telexed, telecopied or delivered to the
Representative at the address set forth on Schedule I hereto, or if to the
Company shall be mailed, telexed, telecopied or delivered to it, attention of
Treasurer, Virginia Electric and Power Company, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇.
13
Please sign and return to us a counterpart of this letter, whereupon
this letter will become a binding agreement between the Company and the several
Underwriters in accordance with its terms.
VIRGINIA ELECTRIC AND POWER COMPANY
By:_________________________________
Title:
The foregoing agreement is
hereby confirmed and accepted,
as of the date first above
written.
[Name of Representation]
By:________________________________
Title:
Acting individually and on
behalf of the other several
Underwriters named in
Schedule II hereto.
14
SCHEDULE I
Title of Senior Debt Securities: 200_, Series _, ____ %, due [date] Senior
Debt Securities
Aggregate Principal Amount: $_____________
Initial Price to Public:
% of the principal amount of the Senior Debt
Securities plus accrued interest, if any, from the date of
issuance
Initial Purchase Price to be paid by Underwriters:
% of the principal amount of the Senior Debt Securities
Time of Delivery: [Closing Date and time]
Closing Location: [Address]
The Senior Debt Securities will be available for inspection by the
Representative at: [Address]
Address for Notices to the Underwriters:
I-1
SCHEDULE II
Principal Amount
Underwriter of Senior Debt Securities to be Purchased
----------- -----------------------------------------
II-1
SCHEDULE III
PROPOSED FORM OF OPINION
OF
UNDERWRITER'S COUNSEL
Re: VIRGINIA ELECTRIC AND POWER COMPANY
____ Series ___% Senior Debt Securities,
due ___, 200_
__, 200_
[Name of Underwriter]
as Representative for
the Several Underwriters
named in Schedule II hereto
[Address of Underwriter]
Ladies and Gentlemen:
We have acted as counsel for you in connection with
arrangements for the issuance by Virginia Electric and Power Company (the
Company) of up to U.S. $____ aggregate principal amount of its ____ Series ___%
Senior Debt Securities, due ___, 200_ (the Senior Debt Securities) under and
pursuant to a Senior Indenture, dated as of ____, 200_ between the Company and
The Chase Manhattan Bank, as trustee (the Trustee), as supplemented by ____
Supplemental Indenture dated as of __, ____ (collectively, the Indenture), and
the offering of the Senior Debt Securities by you pursuant to an Underwriting
Agreement dated __, ____ by and between you and the Company (the Underwriting
Agreement). All terms not otherwise defined herein shall have the meanings set
forth in the Underwriting Agreement.
We have examined originals, or copies certified to our
satisfaction of such corporate records of the Company, indentures, agreements
and other instruments, certificates of public officials, certificates of
officers and representatives of the Company and of the Trustee, and other
documents, as we have deemed necessary as a basis for the opinions hereinafter
expressed. As to various questions of fact material to such opinions, we have,
when relevant facts were not independently established, relied upon
certifications by officers of the Company, the Trustee and other appropriate
persons and statements contained in the Registration Statement
III-1
hereinafter mentioned. All legal proceedings taken as of the date hereof in
connection with the transactions contemplated by the Underwriting Agreement have
been satisfactory to us.
In addition, we attended the closing held today [Address], at
which the Company satisfied the conditions contained in Section 7 of the
Underwriting Agreement that are required to be satisfied as of the Closing Date.
Based upon the foregoing, and having regard to legal
considerations that we deem relevant, we are of the opinion that:
A. The Company is a corporation duly incorporated and existing
under the laws of Virginia, and has corporate power to transact its business as
described in the Prospectus.
B. The Underwriting Agreement has been duly authorized by all
necessary corporate action and has been duly executed and delivered by the
Company.
C. The Indenture has been duly authorized, executed and
delivered by, and constitutes a valid and binding obligation of, the Company and
has been duly qualified under the Trust Indenture Act, except that we express no
opinion as to the validity or enforceability of any covenant to pay interest on
defaulted interest, and 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).
D. The Senior Debt Securities 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 Underwriting 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).
E. The Registration Statement (Reg. No. 333-___) with respect
to the Senior Debt Securities 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 Senior Debt Securities in the manner therein
specified.
The Registration Statement and the Prospectus (except the
financial statements 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.
As to the statements relating to the Senior Debt Securities
under DESCRIPTION OF THE SENIOR DEBT SECURITIES in the prospectus initially
filed as part of the Registration Statement, as supplemented by the statements
under the DESCRIPTION OF THE
III-2
____ SERIES SENIOR DEBT SECURITIES in the Prospectus Supplement dated __, ____
(the Prospectus Supplement), we are of the opinion that the statements are
accurate and do not omit any material fact required to be stated therein or
necessary to make such statements not misleading. As to the statistical
statements in the Registration Statement (which includes the Incorporated
Documents), we have relied solely on the officers of the Company. As to the
other matters, we have not undertaken to determine independently the accuracy or
completeness of the statements contained or incorporated by reference in the
Registration Statement or in the Prospectus. We accordingly assume no
responsibility for the accuracy or completeness of the statements made in the
Registration Statement except as stated above in regard to the above captions.
We note that we were not involved in the preparation of the Registration
Statement or the prospectus initially filed as part thereof, and 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
Prospectus Supplement, and we have reviewed the Incorporated Documents and such
of the corporate records of the Company as we deemed advisable. None of the
foregoing disclosed to us any information that gives us reason to believe that
the Registration Statement or the Prospectus (except the financial statements
incorporated by reference therein, as to which we express no opinion) contained
on the date the Registration Statement became effective or now contains any
untrue statement of a 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 opinion is 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 the statement has
been modified or superseded by any statement in a subsequently filed
Incorporated Document or in the Registration Statement or Prospectus.
F. An appropriate order of the Virginia Commission with
respect to the sale of the Senior Debt Securities on the terms and conditions
set forth in the Underwriting Agreement has been issued, and such order remains
in effect at this date and constitutes valid and sufficient authorization for
the sale of the Senior Debt Securities as contemplated by the Underwriting
Agreement. We understand such order does not contain any provision unacceptable
to you under the Underwriting Agreement. No approval or consent by any public
regulatory body, other than such order and notification of effectiveness by the
Commission, is legally required in connection with the sale of the Senior Debt
Securities as contemplated by the Underwriting 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 Senior Debt Securities
in such states) and the carrying out of the provisions of the Underwriting
Agreement.
G. The Senior Debt Securities conform in all material respects
to their description in the Underwriting Agreement and to the statements with
respect thereto contained in the Registration Statement and the Prospectus.
To the extent that the opinion expressed in paragraph A
involves matters governed by the laws of North Carolina and West Virginia, we
have relied upon certificates of public officials in those states as to the
Company's good standing and due authorization to transact business in those
states.
III-3
Very truly yours,
UNDERWRITER'S COUNSEL
III-4
SCHEDULE IV
PROPOSED FORM OF OPINION
OF
▇▇▇▇▇▇▇, WOODS, BATTLE & ▇▇▇▇▇▇ LLP
One ▇▇▇▇▇ Center
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: VIRGINIA ELECTRIC AND POWER COMPANY
____ Series _____% Senior Debt Securities
due ___, 200_
__, ____
[Name of Underwriter]
as Representative for
the Several Underwriters
named in Schedule II hereto
[Address of Underwriter]
Ladies and Gentlemen:
The arrangements for issuance of up to U.S. $______ aggregate principal
amount of ____ Series ____% Senior Debt Securities, due ___, 200_ (the Senior
Debt Securities), of Virginia Electric and Power Company (the Company) under a
Senior Indenture dated as of ___, 200_ between the Company and [The Chase
Manhattan Bank], as trustee (the Trustee), as supplemented by a ___ Supplemental
Indenture dated as of __, ____ (collectively, the Indenture), and pursuant to an
Underwriting Agreement dated __, ____, by and between the Company and the
Underwriters listed on Schedule II as attached thereto (the Underwriting
Agreement), have been taken under our supervision as counsel for the Company.
Terms not otherwise defined herein have the meanings set forth in the
Underwriting Agreement.
We have examined originals, or copies certified to our satisfaction, of
such corporate records of the Company, indentures, agreements, and other
instruments, certificates of public officials, certificates of officers and
representatives of the Company and of the Trustee, and other documents, as we
have deemed it necessary to require as a basis for the opinions hereinafter
expressed. As to various questions of fact material to such opinions, we have,
when relevant facts were not independently established, relied upon
certifications by officers of the Company,
IV-1
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
Underwriting Agreement have been satisfactory to us.
In regard to the title of the Company to its properties, we have made
no independent investigation of original records but our opinion is based (a)
with respect to land and rights of way for electric lines of 69,000 volts or
more, solely on reports and opinions by counsel in whom we have confidence and
(b) with respect to rights of way for electric lines of less than 69,000 volts
and various matters of fact in regard to all other properties, solely on
information of the Company.
On this basis we are of the opinion that:
1. The Company is a corporation duly organized and existing as a
corporation in good standing under the laws of Virginia and is duly qualified as
a foreign corporation in West Virginia and North Carolina. Neither the nature of
the Company's business nor the properties it owns or holds under lease makes
necessary qualification as a foreign corporation in any state where it is not
now so qualified or where the failure to be so qualified would have a material
adverse effect on the Company and its subsidiaries taken as a whole, and the
Company has corporate power to conduct its business as described in the
Prospectus and to issue the Senior Debt Securities.
2. All requisite corporate and governmental authorizations have been
given for the issuance of the Senior Debt Securities under the Indenture.
3. The Underwriting 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,
and constitutes a valid and binding obligation of, the Company and has been duly
qualified under the Trust Indenture Act, except that we express no opinion as to
the validity or enforceability of any covenant to pay interest on defaulted
interest, and 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).
5. The Senior Debt Securities have been duly authorized by the Company
and, when duly executed by the Company and completed and authenticated by the
Trustee in accordance with, and in the form contemplated by, the Indenture and
issued, delivered and paid for in accordance with the Underwriting 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).
IV-2
[representative]
[date]
Page 3
6. The Registration Statement (Reg. No. 333-____) with respect to the
Senior Debt Securities 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 Senior Debt Securities in the manner therein
specified.
The statements in regard to our firm under the caption EXPERTS in the
Prospectus relating to the Senior Debt Securities are correct, and we are of the
opinion that, so far as governed by the United States, North Carolina or
Virginia, the legal conclusions relation to franchises, title to its properties,
rates, environmental and other regulatory matters and litigation in the
Company's Annual Report on Form 10-K incorporated in the Prospectus by reference
and the description of the provisions of the Senior Indenture and the terms of
the Senior Debt Securities contained in the prospectus initially filed as part
of the Registration Statement under DESCRIPTION OF THE SENIOR DEBT SECURITIES
AND SUBORDINATED SENIOR DEBT SECURITIES, as supplemented by the statements under
DESCRIPTION OF THE ____ SERIES __% SENIOR DEBT SECURITIES in the Prospectus
Supplement dated __, ____, are substantially accurate and fair. As to the
statistical statements in the Registration Statement (which includes the
Incorporated Documents), we have relied solely on the officers of the Company.
As to other matters of fact, we have consulted with officers and other employees
of the Company to inform them of the disclosure requirements of the Securities
Act. We have examined various reports, records, contracts and other documents of
the Company and orders and instruments of public officials, which our
investigation led us to deem pertinent. In addition, we attended the due
diligence meetings with representatives of the Company and the closing at which
the Company satisfied the conditions contained in Section 7 of the Underwriting
Agreement. We have not, however, undertaken to make any independent review of
the other records 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 in regard to the aforesaid captions. But such
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 or the Prospectus contained on the date the Registration
Statement became effective or contains now any untrue statement of a material
fact or omitted on said date or omits now to state a material fact required to
be stated therein or necessary to make the statements therein not misleading. We
are of the opinion that the Registration Statement (excepting the financial
statements incorporated therein by reference, as to which we express no opinion)
complies as to form in all material respects with all legal requirements.
The Registration Statement and the Prospectus (except the financial
statements incorporated by reference therein, as to which we express no opinion)
appear on their face to be
IV-3
[representative]
[date]
Page 4
appropriately responsive in all material respects to the requirements of the
Securities Act, and to the applicable rules and regulations of the Commission
thereunder.
7. The titles and interests of the Company in and to its properties are
reasonably adequate to enable the Company to carry on its business and the
Company holds such franchises permits and licenses as are reasonably adequate to
enable the Company to carry on its business, and, as to any franchises, permits
and licenses that the Company does not hold, the absence thereof will not
materially adversely affect the operation, business and properties of the
Company as a whole. [To the best of our knowledge, there are no actions, suits
or proceedings pending or threatened to which the Company is a party or to which
any of its 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 Underwriting Agreement or to consummate the transactions contemplated
thereby or by the Prospectus.]
8. Except as set forth in the Registration Statement, there are no
pending legal administrative or judicial proceedings.
The opinions in paragraphs 6 and 8 hereof 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 the statement has been
modified or superseded by any statement in a subsequently filed Incorporated
Document or in the Registration Statement or Prospectus.
Yours very truly,
▇▇▇▇▇▇▇, WOODS, BATTLE
& ▇▇▇▇▇▇ LLP
IV-5
