$220,000,000
Old Dominion Electric Cooperative
2001 Series A Bonds Due 2011
Underwriting Agreement
September ____, 2001
X.X. Xxxxxx Securities Inc.
As Representative of the
Several Underwriters Listed
in Schedule I
c/o X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Old Dominion Electric Cooperative, a Virginia utility aggregation
cooperative (the "Company"), proposes to issue and sell to the several
Underwriters listed in Schedule I hereto (the "Underwriters"), for whom you are
acting as Representative (the "Representative"), $220,000,000 principal amount
of its 2001 Series A Bonds Due 2011 (the "Securities"). The Securities will be
issued pursuant to the provisions of the Eleventh Supplemental Indenture, dated
as of September 1, 2001 (the "Eleventh Supplemental Indenture"), to the
Indenture of Mortgage and Deed of Trust, dated as of May 1, 1992, between the
Company and Crestar Bank, as trustee (the "Trustee"), as amended and
supplemented (collectively, the "Indenture").
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"), a registration
statement, including a prospectus, relating to the Securities. The registration
statement as amended at the time when it shall become effective, or, if a
post-effective amendment is filed with respect thereto, as amended by such
post-effective amendment at the time of its effectiveness, including in each
case information (if any) deemed to be part of the registration statement at the
time of effectiveness pursuant to Rule 430A under the Securities Act, is
referred to in this Agreement as the "Registration Statement," and the
prospectus in the form first used to confirm sales of Securities is referred to
in this Agreement as the "Prospectus." If the Company has filed an abbreviated
registration statement pursuant to Rule 462(b) under the Securities Act (the
"Rule 462 Registration
Statement"), then any reference herein to the term "Registration Statement"
shall be deemed to include such Rule 462 Registration Statement.
The Company hereby agrees with the Underwriters as follows:
1. The Company agrees to issue and sell the Securities to the several
Underwriters as hereinafter provided, and each Underwriter, upon the basis of
the representations and warranties herein contained, but subject to the
conditions hereinafter stated, agrees to purchase, severally and not jointly,
from the Company the respective principal amount of Securities set forth
opposite such Underwriter's name in Schedule I hereto at a price equal to ____%
of their principal amount plus accrued interest, if any, from the date of
issuance of the Securities.
2. The Company understands that the Underwriters intend (i) to make a
public offering of their respective portions of the Securities as soon after (A)
the Registration Statement has become effective and (B) the parties hereto have
executed and delivered this Agreement, as in the judgment of the Representative
is advisable and (ii) initially to offer the Securities upon the terms set forth
in the Prospectus.
3. Payment for the Securities shall be made by wire transfer in immediately
available funds to the account specified by the Company to the Representative on
September __, 2001, or at such other time on the same or such other date, not
later than the fifth Business Day thereafter, as the Representative and the
Company may agree upon in writing. The time and date of such payment is referred
to herein as the "Closing Date." As used herein, the term "Business Day" means
any day other than a day on which banks are permitted or required to be closed
in New York City.
Payment for the Securities shall be made against delivery to the nominee of
The Depository Trust Company for the respective accounts of the several
Underwriters of one or more global notes (collectively, the "Global Note")
representing the Securities, with any transfer taxes payable in connection with
the transfer to the Underwriters of the Securities duly paid by the Company. The
Global Note will be made available for inspection by the Representative at the
office of counsel to the Company, Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, not later than 1:00 P.M., New York City time,
on the Business Day prior to the Closing Date.
4. The Company represents and warrants to each Underwriter that:
(a) no order preventing or suspending the use of any preliminary prospectus
has been issued by the Commission, and each preliminary prospectus filed as part
of the Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the Securities Act, complied when
so filed in all material respects with the Securities Act, and did not contain
an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading; provided that this
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representation and warranty shall not apply to any statements or omissions made
in reliance upon and in conformity with information relating to any Underwriter
furnished to the Company in writing by such Underwriter through the
Representative expressly for use therein;
(b) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that purpose has been instituted
or, to the knowledge of the Company, threatened by the Commission; and the
Registration Statement and Prospectus (as amended or supplemented if the Company
shall have furnished any amendments or supplements thereto) comply, or will
comply, as the case may be, in all material respects with the Securities Act and
the Trust Indenture Act of 1939, as amended, and the rules and regulations of
the Commission thereunder (collectively, the "Trust Indenture Act"), and do not
and will not, as of the applicable effective date as to the Registration
Statement and any amendment thereto and as of the date of the Prospectus and any
amendment or supplement thereto, contain 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, and the Prospectus, as amended or
supplemented, if applicable, at the Closing Date will not contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading; except that the foregoing representations and warranties
shall not apply to (i) information contained in the Statement of Eligibility and
Qualification (Form T-1) of the Trustee under the Trust Indenture Act, and (ii)
statements or omissions in the Registration Statement or the Prospectus made in
reliance upon and in conformity with information relating to any Underwriter
furnished to the Company in writing by such Underwriter through the
Representative expressly for use therein;
(c) the financial statements, and the related notes thereto, included in
the Registration Statement and the Prospectus present fairly the consolidated
financial position of the Company and its consolidated subsidiaries as of the
dates indicated and the results of their operations and the changes in their
consolidated cash flows for the periods specified; and said financial statements
have been prepared in conformity with generally accepted accounting principles
applied on a consistent basis, and the supporting schedules included in the
Registration Statement present fairly the information required to be stated
therein;
(d) since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any material
adverse change in the patronage capital, margins or long-term debt of the
Company, or any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general affairs,
business, prospects, management, financial position, patronage capital, margins
or results of operations of the Company and its subsidiaries, taken as a whole,
otherwise than as set forth or contemplated in the Prospectus; and except as set
forth or contemplated in the Prospectus neither the Company nor any of its
subsidiaries has entered into any transaction or agreement (whether or not in
the ordinary course of business) material to the Company and its subsidiaries
taken as a whole;
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(e) the Company has been duly organized and is validly existing as a
utility aggregation cooperative in good standing under the laws of the
Commonwealth of Virginia, with power and authority to enter into and perform its
obligations under this Agreement, the Indenture and the Securities, to own its
properties and conduct its business as described in the Prospectus; neither the
character of the property owned or leased by the Company nor the nature of the
business transacted by it makes the licensing or qualification of the Company as
a foreign corporation necessary in any state or jurisdiction other than Maryland
and Delaware; the Company is duly qualified as a foreign corporation for the
transaction of business and is in good standing in Maryland and Delaware;
(f) each of the Company's subsidiaries has been duly organized and is
validly existing under the laws of its jurisdiction of organization, with power
and authority to own its properties and conduct its business as described in the
Prospectus; neither the character of the property owned or leased by any
subsidiary of the Company nor the nature of the business transacted by such
subsidiary makes the licensing or qualification of such subsidiary necessary in
any state or jurisdiction other than Rock Springs Generation LLC in Maryland;
Rock Springs Generation LLC is duly qualified to do business in and is in good
standing in Maryland; and all the outstanding shares of capital stock or
membership interests of each subsidiary of the Company have been duly authorized
and validly issued, are fully-paid and non-assessable, and are owned by the
Company, free and clear of all liens, encumbrances, security interests and
claims;
(g) this Agreement has been duly authorized, executed and delivered by the
Company;
(h) the Securities have been duly authorized, and, when issued and
delivered pursuant to this Agreement and the Indenture, will have been duly
executed, authenticated, issued and delivered and will constitute valid and
binding obligations of the Company entitled to the benefits provided by the
Indenture; the Indenture has been duly authorized and upon effectiveness of the
Registration Statement will have been duly qualified under the Trust Indenture
Act and, when the Eleventh Supplemental Indenture is executed and delivered by
the Company and the Trustee, the Indenture will constitute a valid and binding
instrument enforceable against the Company in accordance with its terms, subject
to applicable bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors' rights generally and subject to general principles of
equity, regardless of whether considered in a proceeding in equity or at law;
and the Securities and the Indenture will conform to the descriptions thereof in
the Prospectus;
(i) neither the Company nor any of its subsidiaries is, or with the giving
of notice or lapse of time or both would be, in violation of or in default
under, its Articles of Incorporation or Bylaws or other organizational documents
or any indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a party or by
which it or any of them or any of their respective properties is bound, except
for violations and defaults which individually and in the aggregate do not have
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a material adverse effect on the Company and its subsidiaries taken as a whole
or to the holders of the Securities; the issue and sale of the Securities and
the performance by the Company of its obligations under the Securities, the
Indenture and this Agreement and the consummation of the transactions herein and
therein contemplated will not conflict with or result in a breach of any of the
terms or provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the Company or any of
its subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, nor will any such action result
in any violation of the provisions of the Articles of Incorporation or the
Bylaws of the Company or the organizational documents of any of its subsidiaries
or any applicable law or statute or any order, rule or regulation of any court
or governmental agency or body having jurisdiction over the Company, its
subsidiaries or any of their respective properties or result in the creation or
imposition of any lien upon any of the properties of the Company or any of its
subsidiaries; and no consent, approval, authorization, order, license, filing,
registration or qualification of or with, any such court or federal, state or
local governmental agency or body or the members of the Company or any trustee
or holder of any indebtedness or other obligation is now or under existing law
in the future will be required for the issue and sale of the Securities or the
execution, delivery and performance of this Agreement or the Indenture, except
such consents, approvals, authorizations, orders, licenses, filings,
registrations or qualifications as have been made or obtained under the
Securities Act, the Trust Indenture Act and the Federal Power Act and the
filings and recordings described in paragraph (s) below and as may be required
under state securities or blue sky laws in connection with the purchase and
distribution of the Securities by the Underwriters;
(j) other than as set forth or contemplated in the Prospectus, there are no
legal or governmental inquiries, investigations, actions, suits or proceedings
pending or, to the knowledge of the Company, threatened against or affecting the
Company or any of its subsidiaries or any of their respective properties or to
which the Company or any of its subsidiaries is or may be a party or to which
any property of the Company or any of its subsidiaries is or may be the subject
which is required by the Securities Act to be described in the Registration
Statement or Prospectus, and, to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others; and there are no existing or proposed statutes,
regulations, contracts or other documents that are required to be filed as an
exhibit to the Registration Statement or required to be described in the
Registration Statement or the Prospectus which are not filed or described as
required;
(k) Ernst & Young LLP and PricewaterhouseCoopers LLP, who have certified
certain financial statements of the Company, are to the knowledge of the
Company, each independent public accountants as required by the Securities Act;
(l) the Company and its subsidiaries have good and marketable title to all
items of real property and good title to all personal property owned by them, in
each case free and
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clear of all liens, encumbrances and defects except such as are described or
referred to in the Prospectus or such as do not materially affect the value of
such property and do not interfere with the use made or proposed to be made of
such property by the Company and its subsidiaries; and any real property and
buildings held under lease by the Company and its subsidiaries are held by them
under valid, existing and enforceable leases with such exceptions as are
described or referred to in the Prospectus or do not materially interfere with
the use made or proposed to be made of such property and buildings by the
Company or its subsidiaries; no notice has been given to the Company or its
subsidiaries by any governmental authority of any proceeding to condemn or
otherwise acquire any of the property of the Company or its subsidiaries and to
the best of the Company's knowledge, no such proceeding is contemplated;
(m) no relationship, direct or indirect, exists between or among the
Company or any of its subsidiaries on the one hand, and the directors, officers,
members or stockholders (as applicable), customers or suppliers of the Company
or any of its subsidiaries on the other hand, which is required by the
Securities Act to be described in the Registration Statement and the Prospectus
which is not so described; (n) the Company is not and, after giving effect to
the offering and sale of the Securities and the application of the proceeds
thereof 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 (the "Investment Company Act");
(n) the Company is not and, after giving effect to the offering and sale of
the Securities and the application of the proceeds thereof 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 (the "Investment Company Act"):
(o) the Company has complied with all provisions of Section 517.075,
Florida Statutes (Chapter 92-198, Laws of Florida) relating to doing business
with the Government of Cuba or with any person or affiliate located in Cuba;
(p) the Company is not a "holding company" or a "subsidiary company" of a
"holding company" within the meaning of the Public Utility Holding Company Act
of 1935, as amended;
(q) each of the Company and its subsidiaries owns, possesses or has
obtained all licenses, permits, certificates, consents, orders, approvals and
other authorizations (collectively, "Authorizations") from, and has made all
declarations and filings with, all federal, state, local and other governmental
authorities (including foreign regulatory agencies), all self-regulatory
organizations and all courts and other tribunals, domestic or foreign, necessary
to own or lease, as the case may be, and to operate its properties and to carry
on its business as conducted as of the date hereof, except as described in the
Registration Statement and the Prospectus or where the failure to own, possess
or obtain such Authorizations or make such declarations and filings could not
reasonably be expected to have a material adverse effect on the Company and its
subsidiaries, taken as a whole; and neither the Company nor any such subsidiary
has received any actual notice of any proceeding relating to revocation or
modification of any such Authorization, except as described in the Registration
Statement and the Prospectus or where the revocation or modification of such
Authorization could not
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reasonably be expected to have a material adverse effect on the Company and its
subsidiaries, taken as a whole; and each of the Company and its subsidiaries is
in compliance with all laws and regulations relating to the conduct of its
business as conducted as of the date hereof, except where such noncompliance
could not reasonably be expected to have a material adverse effect on the
Company and its subsidiaries, taken as a whole;
(r) there are no existing or, to the best knowledge of the Company,
threatened labor disputes with the employees of the Company or any of its
subsidiaries which are likely to have a material adverse effect on the Company
and its subsidiaries taken as a whole;
(s) the Indenture (excluding the Eleventh Supplemental Indenture)
constitutes, and when the Eleventh Supplemental Indenture is executed and
delivered by the Company and the Trustee and filed and recorded the Indenture
will constitute, a direct and valid first lien upon all of the properties and
assets of the Company specifically or generally described or referred to in the
Indenture as being subject to the lien thereof, subject only to the exceptions
referred to in the Indenture, and will create a similar lien upon all properties
and assets acquired by the Company after the date hereof (until the Release Date
(as defined in the Indenture)) which are required to be subjected to the lien of
the Indenture, when acquired by the Company, subject only to the exceptions
referred to in the Indenture and free from all other prior liens, charges and
encumbrances subject, as to real property, to the recordation of a supplement to
the Indenture describing such after-acquired property; the descriptions of all
such properties and assets contained in the granting clauses of the Indenture
are correct and adequate for the purposes of the Indenture; and the Indenture
(excluding the Eleventh Supplemental Indenture) has been duly recorded as a
mortgage and deed of trust of real estate, and any required filings (other than
with respect to filing the Eleventh Supplemental Indenture) with respect to
personal property and fixtures subject to the lien of the Indenture have been
duly made in each place in which such recording or filing is required to
protect, preserve and perfect the lien of the Indenture; and all taxes and
recording and filing fees required to be paid with respect to the execution,
recording or filing of the Indenture, the filing of financing statements related
thereto and similar documents and the issuance of the Securities (other than
with respect to filing the Eleventh Supplemental Indenture) have been paid; the
Eleventh Supplemental Indenture will be duly recorded or filed on or prior to
the Closing Date in the real and personal property records in each place in
which the Indenture (excluding the Eleventh Supplemental Indenture) has been
recorded or filed and in all other places required to protect, preserve and
perfect the lien of the Indenture, and all taxes and recording and filing fees
required to be paid with respect to the execution, recording or filing of the
Eleventh Supplemental Indenture will be paid;
5. The Company covenants and agrees with each of the several Underwriters
as follows:
(a) to use its best efforts to cause the Registration Statement to become
effective at the earliest possible time and, if required, to file the final
Prospectus with the Commission within the time periods specified by Rule 424(b)
and Rule 430A under the Securities Act; and
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to furnish copies of the Prospectus to the Underwriters in New York City prior
to 10:00 a.m., New York City time, on the Business Day next succeeding the date
of this Agreement in such quantities as the Representative may reasonably
request;
(b) to deliver, at the expense of the Company, to the Representative, three
(3) signed copies of the Registration Statement (as originally filed) and each
amendment thereto, in each case including exhibits, and to each other
Underwriter a conformed copy of the Registration Statement (as originally filed)
and each amendment thereto, in each case without exhibits and, during the period
mentioned in paragraph (e) below, to each of the Underwriters as many copies of
the Prospectus (including all amendments and supplements thereto) as the
Representative may reasonably request;
(c) before filing any amendment or supplement to the Registration Statement
or the Prospectus, whether before or after the time the Registration Statement
becomes effective, to furnish to the Representative a copy of the proposed
amendment or supplement for review and not to file any such proposed amendment
or supplement to which the Representative reasonably objects in writing; so long
as, in the opinion of counsel for the Underwriters, a prospectus is required to
be delivered in connection with sales by any Underwriter or dealer, before
filing any information, documents or reports pursuant to the Securities Exchange
Act of 1934, as amended (the "1934 Act"), to furnish the Representative a copy
of the proposed information, documents or reports prior to filing any such
proposed information, documents or reports;
(d) to advise the Representative promptly, and to confirm such advice in
writing if requested, (i) when the Registration Statement has become effective,
(ii) when any amendment to the Registration Statement has been filed or becomes
effective, (iii) when any supplement to the Prospectus or any amendment to the
Prospectus has been filed and to furnish the Representative with copies thereof,
(iv) of any request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus or for any additional
information, (v) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus or the Prospectus or the
initiation or threatening of any proceeding for that purpose, (vi) of the
occurrence of any event, within the period referenced in paragraph (e) below, as
a result of which the Prospectus as then amended or supplemented would include
an untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not misleading,
and (vii) of the receipt by the Company of any notification with respect to any
suspension of the qualification of the Securities for offer and sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose; and to use every reasonable effort to prevent the issuance of any such
stop order, or of any order preventing or suspending the use of any preliminary
prospectus or the Prospectus, or of any order suspending any such qualification
of the Securities, or notification of any such order thereof and, if issued, to
obtain as soon as possible the withdrawal thereof;
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(e) if, during such period of time after the first date of the public
offering of the Securities as in the opinion of counsel for the Underwriters a
prospectus relating to the Securities is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event shall occur as a
result of which it is necessary to amend or supplement the Prospectus in order
to make the statements therein, in the light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading, or if it is necessary to
amend or supplement the Prospectus to comply with law, forthwith to prepare and
furnish, at the expense of the Company, to the Underwriters and to the dealers
(whose names and addresses the Representative will furnish to the Company) to
which Securities may have been sold by the Representative on behalf of the
Underwriters and to any other dealers upon request, such amendments or
supplements to the Prospectus as may be necessary so that the statements in the
Prospectus as so amended or supplemented will not, in the light of the
circumstances when the Prospectus is delivered to a purchaser, be misleading or
so that the Prospectus will comply with law;
(f) to endeavor to qualify the Securities for offer and sale under the
securities or blue sky laws of such jurisdictions as the Representative shall
reasonably request, including filing a general consent to service of process in
any jurisdiction, and to continue such qualification in effect so long as
reasonably required for distribution of the Securities; provided that the
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Company shall not be required to qualify to do business in any jurisdiction or
take any action which would subject it to service of process other than service
of process arising out of the offer or sale of Securities in any jurisdiction
where it is not now subject;
(g) to make generally available to its security holders and to the
Representative as soon as practicable an earnings statement which will satisfy
the provisions of Section 11(a) of the Securities Act and Rule 158 of the
Commission promulgated thereunder covering a period of at least twelve months
beginning with the first fiscal quarter of the Company occurring after the
"effective date" (as defined in Rule 158) of the Registration Statement;
(h) for a period of five years after the date hereof, to furnish to the
Representative (i) copies of all reports or other communications (financial or
other) furnished to holders of the Securities, and copies of any reports and
financial statements furnished to or filed with the Commission or any national
securities exchange, (ii) copies of each annual report of the Company furnished
to its members and (iii) such other information concerning the Company as the
Representative reasonably may request;
(i) during the period beginning on the date hereof and continuing to and
including the Business Day six months after the Closing Date, not to offer,
sell, contract to sell, or otherwise dispose of any debt securities of or
guaranteed by the Company which are substantially similar to the Securities;
(j) to use the net proceeds received by the Company from the sale of the
Securities pursuant to this Agreement in the manner specified in the Prospectus
under the caption "Plan of Finance and Use of Proceeds";
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(k) whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, to pay or cause to be paid all
costs and expenses incident to the performance of its obligations hereunder,
including without limiting the generality of the foregoing, all fees, costs and
expenses (i) incident to the preparation, issuance, execution, authentication
and delivery of the Securities, including any fees and expenses of the Trustee,
(ii) incident to the preparation, printing, reproduction, and filing under the
Securities Act of the Registration Statement, the Prospectus and any preliminary
prospectus (including in each case all exhibits, amendments and supplements
thereto), (iii) incurred in connection with the registration or qualification
and determination of eligibility for investment of the Securities under the laws
of such jurisdictions as the Underwriters may designate (including fees of
counsel for the Underwriters and their disbursements but not with respect to any
legal investment survey), (iv) related to any filing with National Association
of Securities Dealers, Inc., (v) in connection with the printing (including word
processing and duplication costs) and delivery of this Agreement, the Form T-1,
the Indenture, the preliminary and supplemental blue sky memoranda (but not any
legal investment survey) and the furnishing to Underwriters and dealers of
copies of the Registration Statement, the Prospectus and any preliminary
prospectus, including mailing and shipping, as herein provided, (vi) payable to
rating agencies in connection with the rating of the Securities, (vii) incurred
by the Company in connection with a "road show" presentation to potential
investors, (viii) of any transfer agent, (ix) of independent public accountants
in connection with the offering of the Securities, and (x) any credit
enhancement for the Securities.
6. The several obligations of the Underwriters hereunder to purchase the
Securities on the Closing Date are subject to the performance by the Company of
its obligations hereunder and to the following additional conditions:
(a) the Registration Statement shall have become effective (or if a
post-effective amendment is required to be filed under the Securities Act, such
post-effective amendment shall have become effective) not later than 5:30 P.M.,
New York City time, on the date hereof; and no stop order suspending the
effectiveness of the Registration Statement or any post-effective amendment
shall be in effect, and no proceedings for such purpose shall be pending before
or threatened by the Commission; the Prospectus shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time period prescribed
for such filing by the rules and regulations under the Securities Act and in
accordance with Section 5(a) hereof; and all requests for additional information
shall have been complied with to the satisfaction of the Representative;
(b) the representations and warranties of the Company contained herein are
true and correct on and as of the Closing Date as if made on and as of the
Closing Date and the Company shall have complied with all agreements and all
conditions on its part to be performed or satisfied hereunder at or prior to the
Closing Date;
(c) subsequent to the execution and delivery of this Agreement and prior to
the Closing Date, there shall not have occurred any downgrading, nor shall any
notice have been
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given of (i) any downgrading, (ii) any intended or potential downgrading or
(iii) any review or possible change that does not indicate an improvement, in
the rating accorded any securities of or guaranteed by the Company by any
"nationally recognized statistical rating organization," as such term is defined
for purposes of Rule 436(g)(2) under the Securities Act;
(d) since the date of the most recent audited financial statements included
in the Prospectus or, with respect to information in the Prospectus as of a more
recent date, since such more recent date, otherwise than as set forth or
contemplated in the Prospectus, there shall not have been (i) any change in the
patronage capital, margins or long-term debt of the Company, (ii) any material
adverse change, or any development involving a prospective material adverse
change, in or affecting the general affairs, business, properties, prospects,
management, financial position, patronage capital, margins or results of
operations of the Company and its subsidiaries, taken as a whole, or (iii) any
material loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, the effect of which in the
judgment of the Representative makes it impracticable or inadvisable to proceed
with the public offering or the delivery of the Securities on the Closing Date
on the terms and in the manner contemplated in the Prospectus;
(e) the Representative shall have received on and as of the Closing Date a
certificate of the Senior Vice President of Accounting and Finance, to the
effect set forth in subsections (a) through (c) (with respect to the respective
representations, warranties, agreements and conditions of the Company) of this
section and to the further effect that there has not occurred any material
adverse change, or any development involving a perspective material adverse
change, in or affecting the general affairs, business, properties, prospects,
management, financial position, equities, margins or results of operations of
the Company and its subsidiaries taken as a whole from that set forth or
contemplated in the Registration Statement and as to such other matters as you
may reasonably request;
(f) Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, special counsel for the Company,
shall have furnished to the Representative their written opinion, dated the
Closing Date, in form and substance satisfactory to the Representative; the
opinion of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP described above shall be rendered
to the Underwriters at the request of the Company and shall so state therein;
(g) XxXxxxx Xxxx, general counsel for the Company, shall have furnished to
the Representative their written opinion, dated the Closing Date, in form and
substance satisfactory to the Representative; the opinion of XxXxxxx Xxxx
described above shall be rendered to the Underwriters at the request of the
Company and shall so state therein;
(h) the counsel for each of the members of the Company other than ODEC
Power Trading, Inc. (the "Member Cooperatives") shall have furnished to the
Representative its written opinion, dated the Closing Date, in form and
substance satisfactory to the Representative; the opinion of such counsel shall
be rendered to the Underwriters at the request of the applicable Member
Cooperative and shall so state therein;
11
(i) on the effective date of the Registration Statement and the effective
date of the most recently filed post-effective amendment to the Registration
Statement and also on the Closing Date, each of Ernst & Young LLP and
PricewaterhouseCoopers LLP shall have furnished to you letters, dated the
respective dates of delivery thereof, in form and substance satisfactory to you,
containing statements and information of the type customarily included in
accountants' "comfort letters" to underwriters with respect to the financial
statements and certain financial information contained in the Registration
Statement and the Prospectus;
(j) the Representative shall have received on and as of the Closing Date an
opinion of Xxxxxxxxxx Xxxxxx & Xxxxxxx LLP, counsel to the Underwriters, with
respect to the validity of the Indenture and the Securities, the Registration
Statement, the Prospectus and other related matters as the Representative may
reasonably request, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon such
matters;
(k) on and as of the Closing Date the manager of each Member Cooperative
shall have furnished to the Representative a certificate, in form and substance
satisfactory to the Representative;
(l) on and as of the Closing Date the Secretary of the Company shall have
furnished to the Representative a certificate, satisfactory to the
Representative, attaching a true and correct copy of the Company's Articles of
Incorporation and Bylaws and attaching such other documents and certifying as to
such other matters as you may reasonably request;
(m) on or prior to the Closing Date the Company shall have furnished to the
Representative such further opinions, certificates and documents as the
Representative shall reasonably request and shall have obtained such consents
and approvals as may be required in connection with the issuance and sale of the
Securities and the execution, delivery and performance of this Agreement and the
Indenture;
(n) on or prior to the Closing Date the Federal Energy Regulatory
Commission ("FERC") shall have issued a final order approving the issuance of
the Securities and allowing for exemption from FERC's competitive bidding
procedures and negotiated placement requirements.
7. The Company agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of
1934, as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Exchange Act"), from and against any and all losses, claims,
damages and liabilities (including, without limitation, the reasonable legal
fees and other expenses incurred in connection with any suit, action or
proceeding or any claim asserted) caused by any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement or
the Prospectus (as amended or supplemented if the Company shall have furnished
any amendments or supplements thereto) or any preliminary prospectus, or caused
by any omission or alleged omission to state therein
12
a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any untrue statement or omission or alleged
untrue statement or omission made (i) in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in writing by
such Underwriter through the Representative expressly for use therein or (ii) in
the preliminary prospectus (or any amendment or supplement thereto) but not in
the Prospectus in the case of losses, claims, damages or liabilities of an
Underwriter to a purchaser of the Securities to whom such Underwriter failed to
confirm the purchase and sale of the Securities by delivery of a Prospectus.
Each Underwriter agrees, severally and not jointly, to indemnify and hold
harmless the Company, its directors, its officers who sign the Registration
Statement and each person who controls the Company within the meaning of Section
15 of the Securities Act and Section 20 of the Exchange Act to the same extent
as the foregoing indemnity from the Company to each Underwriter, but only with
reference to information relating to such Underwriter furnished to the Company
in writing by such Underwriter through the Representative expressly for use in
the Registration Statement, the Prospectus, any amendment or supplement thereto,
or any preliminary prospectus.
If any suit, action, proceeding (including any governmental or regulatory
investigation), claim or demand shall be brought or asserted against any person
in respect of which indemnity may be sought pursuant to either of the two
preceding paragraphs, such person (the "Indemnified Person") shall promptly
notify the person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding. In any such proceeding, any
Indemnified Person shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Person
unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary, (ii) the Indemnifying Person has failed within
a reasonable time to retain counsel reasonably satisfactory to the Indemnified
Person or (iii) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and the Indemnified Person shall be advised by counsel in writing that
representation of both parties by the same counsel would be inappropriate due to
actual or potential differing interests between them. It is understood that the
Indemnifying Person shall not, in connection with any proceeding or related
proceeding in the same jurisdiction, be liable for the fees and expenses of more
than one separate firm (in addition to any local counsel) for all Indemnified
Persons, and that all such fees and expenses shall be reimbursed as they are
incurred. Any such separate firm for the Underwriters and such control persons
of Underwriters shall be designated in writing by X.X. Xxxxxx Securities Inc.
and any such separate firm for the Company, its directors, its officers who sign
the Registration Statement and such control persons of the Company shall be
designated in writing by the Company. The Indemnifying Person shall not be
liable for any settlement of any proceeding effected
13
without its written consent, but if settled with such consent or if there be a
final judgment for the plaintiff, the Indemnifying Person agrees to indemnify
any Indemnified Person from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an Indemnified Person shall have requested an Indemnifying Person to reimburse
the Indemnified Person for the reasonable fees and expenses of counsel as
contemplated by the third sentence of this paragraph, the Indemnifying Person
agrees that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than 30
days after receipt by such Indemnifying Person of the aforesaid request and (ii)
such Indemnifying Person shall not have reimbursed the Indemnified Person in
accordance with such request prior to the date of such settlement. No
Indemnifying Person shall, without the prior written consent of the Indemnified
Person, effect any settlement of any pending or threatened proceeding in respect
of which any Indemnified Person is or could have been a party and indemnity
could have been sought hereunder by such Indemnified Person, unless such
settlement includes an unconditional release of such Indemnified Person from all
liability on claims that are the subject matter of such proceeding.
If the indemnification provided for in the first and second paragraphs of this
Section 7 is unavailable to an Indemnified Person or insufficient in respect of
any losses, claims, damages or liabilities referred to therein, then each
Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other hand from the offering of the Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and the Underwriters on the other in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and the Underwriters on the other shall be deemed
to be in the same respective proportions as the net proceeds from the offering
(before deducting expenses) received by the Company and the total underwriting
discounts and the commissions received by the Underwriters, in each case as set
forth in the table on the cover of the Prospectus, bear to the aggregate public
offering price of the Securities. The relative fault of the Company on the one
hand and the Underwriters on the other 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 relates to
information supplied by the Company or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and equitable
if contribution pursuant to this Section 7 were determined by pro rata
--- ----
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in the
14
immediately preceding paragraph. The amount paid or payable by an Indemnified
Person as a result of the losses, claims, damages and liabilities referred to in
the immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses incurred by such
Indemnified Person in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 7, in no event shall an
Underwriter be required to contribute any amount in excess of the amount by
which the total price at which the Securities underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages that
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. 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 to
contribute pursuant to this Section 7 are several in proportion to the
respective principal amount of Securities set forth opposite their names in
Schedule I hereto, and not joint.
The remedies provided for in this Section 7 are not exclusive and shall not
limit any rights or remedies which may otherwise be available to any indemnified
party at law of in equity.
The indemnity and contribution agreements contained in this Section 7 and the
representations and warranties of the Company set forth in this Agreement shall
remain operative and in full force and effect regardless of (i) any termination
of this Agreement, (ii) any investigation made by or on behalf of any
Underwriter or any person controlling any Underwriter or by or on behalf of the
Company, its officers or directors or any other person controlling the Company
and (iii) acceptance of and payment for any of the Securities.
8. Notwithstanding anything herein contained, this Agreement may be
terminated in the absolute discretion of the Representative, by written notice
given to the Company, if after the execution and delivery of this Agreement and
prior to the Closing Date (i) trading generally shall have been suspended or
materially limited on or by, as the case may be, any of the New York Stock
Exchange, the American Stock Exchange, the National Association of Securities
Dealers, Inc., the Chicago Board Options Exchange, the Chicago Mercantile
Exchange or the Chicago Board of Trade, (ii) trading of any securities of or
guaranteed by the Company shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities, or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis
that, in the judgment of the Representative, is material and adverse and which,
in the judgment of the Representative, makes it impracticable to market the
Securities on the terms and in the manner contemplated in the Prospectus.
9. This Agreement shall become effective upon the later of (i) execution
and delivery hereof by the parties hereto and (ii) release of notification of
the effectiveness of the Registration Statement (or, if applicable, any
post-effective amendment) by the Commission.
15
If on the Closing Date any one or more of the Underwriters shall fail or refuse
to purchase Securities which it or they have agreed to purchase hereunder on
such date, and the aggregate principal amount of 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 Securities
to be purchased on such date, the other Underwriters shall be obligated
severally in the proportions that the principal amount of Securities set forth
opposite their respective names in Schedule I bears to the aggregate principal
amount of Securities set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as the Representative may specify, to
purchase the Securities which such defaulting Underwriter or Underwriters agreed
but failed or refused to purchase on such date; provided that in no event shall
--------
the principal amount of Securities that any Underwriter has agreed to purchase
pursuant to Section 1 be increased pursuant to this Section 9 by an amount in
excess of one-tenth of such principal amount of Securities without the written
consent of such Underwriter. If on the Closing Date any Underwriter or
Underwriters shall fail or refuse to purchase Securities which it or they have
agreed to purchase hereunder on such date, and the aggregate principal amount of
Securities with respect to which such default occurs is more than one-tenth of
the aggregate principal amount of Securities to be purchased on such date, and
arrangements satisfactory to the Representative and the Company for the purchase
of such Securities are not made within 36 hours after such default, this
Agreement shall terminate without liability on the part of any non-defaulting
Underwriter or the Company. In any such case that does not result in termination
of this Agreement, either you 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 paragraph shall not relieve any defaulting Underwriter from liability in
respect of any default of such Underwriter under this Agreement.
10. If this Agreement shall be terminated by the Underwriters, or any of
them, 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 or any condition of the Underwriters' obligations cannot be fulfilled,
the Company agrees to reimburse the Underwriters or such Underwriters as have so
terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and expenses of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder.
11. This Agreement shall inure to the benefit of and be binding upon the
Company, the Underwriters, any controlling persons referred to herein and their
respective successors and assigns. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give 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. No purchaser of Securities
from any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
16
12. Any action by the Underwriters hereunder may be taken by the
Representative alone on behalf of the Underwriters, and any such action taken by
the Representative shall be binding upon the Underwriters. All notices and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if mailed or transmitted by any standard form of telecommunication.
Notices to the Underwriters shall be given to the Representative at X.X. Xxxxxx
Securities Inc., 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000 (telefax: (212)
648-5237); Attention: Syndicate Department. Notices to the Company shall be
given to it at 0000 Xxxxxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxxx 00000,
(telefax:804-747-3742); Attention: Xxxxxx X. Xxxxxx.
13. This Agreement may be signed in counterparts, each of which shall be an
original and all of which together shall constitute one and the same instrument.
14. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York, without giving effect to the conflicts of
laws provisions thereof.
If the foregoing is in accordance with your understanding, please sign and
return four counterparts hereof.
Very truly yours,
Old Dominion Electric Cooperative
By:______________________________
Name: Xxxxxxx X. Xxxxxx
Title: President
Accepted: September __, 2001
X.X. Xxxxxx Securities Inc.
Acting severally on behalf
of itself and the
several Underwriters listed
in Schedule I hereto.
By:___________________________
Name:
Title:
17
SCHEDULE I
Amount of
---------
Underwriter Securities To Be Purchased
----------- --------------------------
X. X. Xxxxxx Securities Inc. ____________
Banc of America Securities LLC ____________
Total $220,000,000
E-1
