Exhibit 1(i)
VIRGINIA ELECTRIC AND POWER COMPANY
First and Refunding Mortgage Bonds
Series _, ____%, Due __________
FORM OF UNDERWRITING AGREEMENT
[Date]
[Name of Underwriter]
as Representative for
the Several Underwriters
named in Schedule II hereto
[Address of Underwriter]
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 First and Refunding Mortgage Bonds (the Mortgage Bonds) specified
in Schedule I hereto (the Mortgage Bonds so specified being referred to herein
as the Bonds), 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
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 Bonds. Schedule I specifies the aggregate
principal amount of the Bonds, the initial public offering price of the Bonds,
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 Bonds 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 Bonds. The Bonds will be issued under the Company's Indenture
of Mortgage dated November 1, 1935 between the Company and The Chase Manhattan
Bank, as Trustee (the Trustee), as supplemented and modified to the date
hereof and as to be supplemented by a Supplemental Indenture substantially in
the form contained as an exhibit to the Registration Statement referred to below
(the Supplemental Indenture).
3. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, the Underwriters that:
(a) A registration statement, No. 33-_______ on Form S-3 for the
registration of the Mortgage Bonds 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 Mortgage Bonds included in the
Registration Statement, which prospectus is now proposed to be
supplemented by a supplement relating to the Bonds 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 (the Securities Exchange
Act) and the Trust Indenture Act of 1939, as amended (the
Trust Indenture Act), and the rules,
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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 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 paragraph (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; 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 [and
the audited results for ____ for which financial statements
have not yet been released], 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
will not result in a breach of any of the terms or provisions
of, or constitute a default under, any indenture, mortgage,
deed of trust, or other agreement or instrument to which the
Company is now a party, or the charter of the Company, as
amended, or any order, rule
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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.
(f) The Bonds, 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 Bonds.
(g) The Company has complied and will comply with all of the
provisions of Florida H.B. 1771, codified as Section 517.075
of the Florida statutes, and all regulations promulgated
thereunder related to issuers of securities doing business
with Cuba.
4. Public Offering. On the basis of the representations and warranties
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
Bonds set forth opposite the name of such Underwriter in Schedule II hereto. The
several Underwriters agree to make a public offering of their respective Bonds
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 Bonds 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 Bonds shall be made to
the Company or its order by check or checks in New York Clearing House funds at
the Closing Date. The Bonds shall be in the form of definitive fully registered
Bonds without coupons in such authorized denominations and registered in such
names as the Representative shall specify in writing not later than 12 Noon, New
York time, on the third business day prior to the Closing Date. For the purpose
of expediting the checking of such Bond certificates by the Representative, the
Company agrees to make the certificates available to the Representative for such
purpose not later than 12 Noon, New York time, on the last business day before
the Closing Date, at the place specified in Schedule I.
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6. Covenants of the Company. The Company agrees that:
(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 and the
Supplemental Indenture, (ii) the preparation, issue and
delivery of certificates for the Bonds, (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
Bonds. In addition, the Company will pay the reasonable fees
and disbursements of Underwriters' counsel, McGuire, Woods,
Battle & Xxxxxx, L.L.P., in connection with the qualification
of the Bonds 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, at any time when a prospectus relating to the Bonds is
required to be delivered under the Securities Act, any event
occurs 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 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 Securities
Act, the Company promptly will (i) notify the Representative
to suspend solicitation of purchases of the Bonds 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. In case any
Underwriter is required to deliver a prospectus in connection
with the sale of any Bonds 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 paragraph, 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
McGuire, Woods, Battle & Xxxxxx, L.L.P.
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(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; 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.
(f) For a period of five years following the Closing Date, the
Company will deliver to the Representative, as soon as
practicable after the end of each fiscal year, a balance sheet
of the Company as of the end of such year and statements of
income and earnings reinvested in business for such year, all
as certified by independent public or certified public
accountants, and will deliver to the Representative upon
request, as soon as practicable after the end of each
quarterly period, statements of income and earnings reinvested
in business for the 12-month period ending with the end of
such quarterly period.
(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 Bonds.
(h) The Company will furnish such proper information as may be
lawfully required and otherwise cooperate in qualifying the
Bonds 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 McGuire, Woods, Battle & Xxxxxx,
L.L.P. 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 paragraph 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.
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7. Conditions of Underwriters' Obligations; Termination by the
Underwriters.
(a) The obligations of the Underwriters to purchase and pay for
the Bonds 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 Bonds, a certificate dated the Closing Date
and signed by the President or any 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 Virginia
Commission permitting the issuance and sale of the
Bonds substantially in accordance with the terms and
conditions hereof shall be in full force and effect
and shall contain no provision unacceptable to the
Representative or the Company (but 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
McGuire, Woods, Battle & Xxxxxx, L.L.P., Hunton &
Xxxxxxxx and Xxxxxxx & Xxxxx, substantially in the
forms attached hereto as Schedules III through V.
(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
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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 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
utility plant expenditures), (2) in the Company's most
recent
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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 Mortgage Bonds 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 (whether or not arising in the ordinary course
of business) 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
Bonds 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 Mortgage Bonds 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 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 Unites 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
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 Bonds 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
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Representative shall have received a certificate to
such effect signed by the President or any Vice
President of the Company.
(vii) All legal proceedings to be taken in connection with
the issuance and sale of the Bonds shall have been
satisfactory in form and substance to McGuire, Woods,
Battle & Xxxxxx, L.L.P.
(b) In case any of the conditions specified above in paragraph
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 subparagraphs 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 50% or more of the
aggregate principal amount of the Bonds 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 paragraphs 6(b), 6(i) and 7(c) hereof.
(c) If this Agreement shall be terminated by the Representative
pursuant to paragraph (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 counsel as provided in paragraph 6(i))
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
paragraph 6(b) and Section 9.
8. Conditions of the Obligation of the Company. The obligation of the
Company to deliver the Bonds shall be subject to the conditions set forth in the
first sentence of subparagraph 7(a)(i) and in subparagraph 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 paragraphs 6(b), 6(i), 9 and
10(c) hereof.
9. Indemnification. (a) The Company agrees to indemnify and hold
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
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to reimburse each such Underwriter and controlling person for any legal or other
expenses (including, to the extent hereinafter provided, reasonable 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 Bonds 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 paragraph 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 paragraph (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 Bonds.
(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 counsel fees) incurred by them in connection
with investigating any such losses, claims, damages or
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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, 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 paragraph 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 Bonds.
(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 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 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 paragraph 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,
- 12 -
(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.
(d) If the indemnification provided for in this Section 9 is
unavailable to or insufficient to hold harmless an indemnified party under
paragraph (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable 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 you, 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 paragraph
(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 paragraph (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 paragraph (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 paragraph (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 Bonds which it or they have agreed to
purchase hereunder, and the aggregate principal amount of the Bonds 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 Bonds, the
other Underwriters shall be obligated severally in the proportions which the
principal amount of the Bonds set forth opposite their respective names in
Schedule II bears to the aggregate principal amount of the Bonds, or in such
other proportions as the Underwriters may specify, to purchase the Bonds 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
Bonds and the aggregate principal amount of the Bonds with respect to which such
default occurs is more than one-tenth of the aggregate principal amount of the
- 13 -
Bonds and arrangements satisfactory to the Underwriters and the Company for the
purchase of such Bonds 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 paragraph 6(i) and Section 9) or of the
Company (except as provided in paragraph 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 Bonds.
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 said 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 Bonds
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, 000 X. Xxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxx 00000.
- 14 -
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 Underwriter]
By:________________________________
Title:
Acting individually and on
behalf of the other several
Underwriters named in
Schedule II hereto.
- 15 -
SCHEDULE I
Title of Bonds: First and Refunding Mortgage Bonds of 199_, Series _, ____ %,
due[date]
Aggregate Principal Amount: $_____________
Initial Price to Public:
% of the principal amount of the Bonds plus accrued
interest, if any, from the date of issuance
Initial Purchase Price to be paid by Underwriters:
% of the principal amount of the Bonds
Specified funds for payment of purchase price (N.Y. Clearing House Funds unless
otherwise specified).
Time of Delivery: [Closing Date and time]
Closing Location: 000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX
The Bonds will be available for inspection by the Representative at:
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX
Address for Notices to the Underwriters:
- 16 -
SCHEDULE II
Principal Amount
Underwriter of Bonds to be Purchased
- 17 -
SCHEDULE III
PROPOSED FORM OF OPINION
OF
MCGUIRE, WOODS, BATTLE & XXXXXX, L.L.P.
Xxx Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Re: VIRGINIA ELECTRIC AND POWER COMPANY
First and Refunding Mortgage Bonds of 199_
Series _, ____%, due [date]
[Closing Date]
[name and address of
Representative]
Dear Sirs:
We have acted as counsel for the several Underwriters described below
in connection with arrangements for the issuance by Virginia Electric and Power
Company (the Company) of $____________ aggregate principal amount of its First
and Refunding Mortgage Bonds of 199_, Series _, ____% due [date] (the Bonds),
the terms of which are specified in Schedule I of the Underwriting Agreement
referred to below and in the Prospectus referred to therein, under and pursuant
to an Indenture of Mortgage of the Company, dated November 1, 1935, as
supplemented and modified by eighty-_____ supplemental indentures (said
Indenture of Mortgage as so supplemented and modified being hereinafter called
the Mortgage), under which The Chase Manhattan Bank, is now Trustee, and
the purchase of the Bonds by the several Underwriters pursuant to the
Underwriting Agreement dated [date] between you, acting individually and as
Representative of the several Underwriters named in Schedule II thereto, and the
Company (the Underwriting Agreement). Unless otherwise defined herein,
capitalized terms used herein shall have the meanings set forth in the
Underwriting Agreement.
- 18 -
We have examined originals, or copies certified to our satisfaction, of
such corporate records of the Company, indentures, agreements and other
instruments, certificates of public officials, certificates of officers and
representatives of the Company and of the Trustee, and other documents, as we
have deemed it necessary to require as a basis for the opinions hereinafter
expressed. As to various questions of fact material to such opinions, we have,
when relevant facts were not independently established, relied upon
certifications by officers of the Company, the Trustee and other appropriate
persons and statements contained in the Registration Statement. All legal
proceedings taken as of the date hereof in connection with the issuance and sale
of the Bonds have been satisfactory in form and substance to us.
In addition, we attended the closing held today at 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx, at which the Company delivered to the Representative, for the
accounts of the several Underwriters, certificates for the Bonds, in accordance
with the Underwriting Agreement, against payment therefor.
Based upon the foregoing, and having regard to legal considerations
which 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 is duly qualified as a foreign
corporation in West Virginia and North Carolina, 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, and constitutes a valid obligation of the Company.
C. The Registration Statement 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 Bonds in the manner therein specified.
The Registration Statement and the Prospectus (except the
financial statements and other financial or statistical information
included or incorporated by reference therein, as to which we express
no opinion) appear on their face to be appropriately responsive in all
material respects to the requirements of the Securities Act and the
Trust Indenture Act, and to the applicable rules and regulations of the
Commission thereunder.
We express no opinion with reference to the statements under
"Security and Priority" under the caption DESCRIPTION OF THE BONDS in
the Prospectus for the reasons indicated in the concluding paragraph of
this opinion; but except as aforesaid, and subject to the concluding
paragraph of this opinion, we are of the opinion that the
- 19 -
statements under DESCRIPTION OF THE BONDS are accurate and do not omit
any material fact required to be stated therein or necessary to make
such statements not misleading. As to 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 have, however,
participated in conferences with counsel for and representatives of the
Company in connection with the preparation of the Registration
Statement and the Prospectus, and we have reviewed all documents
incorporated by reference in the Prospectus through the date hereof
pursuant to the requirements of Form S-3 (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 which
gives us reason to believe that the Registration Statement or the
Prospectus (except the financial statements and other financial or
statistical information included or 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 is made 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.
D. An appropriate order of the Virginia Commission with
respect to the issue and sale of the Bonds on the terms and conditions
set forth in the Underwriting Agreement has been issued, and said order
remains in effect at this date and constitutes valid and sufficient
authorization for the sale of the Bonds as contemplated by the
Underwriting Agreement. We understand said order does not contain any
provision unacceptable to the Representative 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 issue and sale of the Bonds as
contemplated by the Underwriting Agreement (except compliance with the
provisions of securities or blue sky laws of certain states in
connection with the sale of the Bonds in such states) and the carrying
out of the provisions of the Underwriting Agreement.
E. The Mortgage has been duly authorized by all necessary
corporate action and has been duly executed and delivered, and conforms
to the statements with respect thereto contained in the Registration
Statement and the Prospectus; the Mortgage, so far as it relates to
properties in Virginia, North Carolina and West Virginia, subject, as
to real properties acquired after the admission of the Eighty-_____
Supplemental Indenture to recordation, to due and prompt recordation of
the Eighty-_____ Supplemental Indenture in all the recording offices
within the jurisdiction of which such properties are
- 20 -
located before any sale of any such properties, and subject, as to the
mortgaged personal properties in West Virginia, to due and prompt
filing of the Eighty-_____ Supplemental Indenture in the office of the
Secretary of State of West Virginia, constitutes a valid mortgage
legally effective to create a lien (as to the ranking of which
reference is made to the below-mentioned opinions of Messrs. Hunton &
Xxxxxxxx and Messrs. Xxxxxxx & Xxxxx, including the statements made in
the Prospectus on their authority) for the security of the Bonds (pari
passu with all other bonds of the same or other series that are or may
hereafter be issued under the Mortgage) upon the interest of the
Company in the property, including franchises, now owned by the
Company, except as otherwise provided in the Mortgage as to specific
property or specific classes of property; the Mortgage contains
customary provisions for the enforcement of the security provided for
therein, certain of which may be limited by the laws of Virginia, West
Virginia or North Carolina (but such laws do not, in our opinion, make
inadequate the remedies necessary for the realization of the benefits
of such security) and, as to nuclear facilities, by the Atomic Energy
Act of 1954, as amended, and regulations thereunder, and may also be
limited or rendered unavailable by bankruptcy, moratorium and similar
laws from time to time in force or general principles of equity. We
express no opinion as to the validity or enforceability of any covenant
to pay interest on defaulted interest.
The Mortgage has been duly qualified under the Trust Indenture
Act.
F. The Bonds conform to their description in the Underwriting
Agreement and to the statements with respect thereto contained in the
Registration Statement and the Prospectus, and have been duly
authorized and are duly issued under the Mortgage and entitled to the
benefits and security thereof and are valid, binding and legal
obligations of the Company according to their tenor and effect
(subject, as to enforceability, to bankruptcy, moratorium and similar
laws from time to time in force or general principles of equity).
We have made no examination of the Company's title to property
purported to be owned by it, the description of such property contained in the
Mortgage, the validity and sufficiency of the franchises under which the Company
operates, the ranking of the lien created by the Mortgage, the absence of liens
or encumbrances on property of the Company other than the lien of the Mortgage
and the permitted liens referred to therein, the due recordation prior to the
date hereof of the original Indenture of Mortgage and the first eighty-_____
supplemental indentures, the form (for purposes of recording) of the Mortgage,
or the due filing prior to the date hereof of a financing statement or any other
instrument to protect the lien of the Mortgage upon personal property in West
Virginia. We express no opinion on such matters and, to the extent that the
opinions herein expressed involve such matters, we have relied upon the opinion
addressed to you by Messrs. Hunton & Xxxxxxxx of Richmond, Virginia, and
Raleigh, North Carolina, and Messrs. Xxxxxxx & Xxxxx of Charleston, West
Virginia, each dated the date hereof (including the statements made in the
Prospectus on their authority), which opinions are
- 21 -
satisfactory in scope and form to us, and upon which opinions we believe you and
we may properly rely. Likewise, we have relied upon the opinions of such counsel
as to all matters of West Virginia and North Carolina law.
Very truly yours,
McGUIRE, WOODS, BATTLE & XXXXXX, L.L.P.
- 22 -
SCHEDULE IV
PROPOSED FORM OF OPINION
OF
HUNTON & XXXXXXXX
Riverfront Plaza, East Tower
000 X. Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Re: VIRGINIA ELECTRIC AND POWER COMPANY
First and Refunding Mortgage Bonds of 199_
Series _, ____%, due [date]
[Closing Date]
[name and address of
Representative]
Dear Sirs:
We have acted as counsel for Virginia Electric and Power
Company (the Company) in connection with arrangements for the issuance by the
Company of $____________ aggregate principal amount of its First and Refunding
Mortgage Bonds of 199_, Series _, ____%, due [date] (the Bonds) the terms of
which are specified in Schedule I of the Underwriting Agreement referred to
below and in the Prospectus referred to therein, under and pursuant to an
Indenture of Mortgage of the Company, dated November 1, 1935, as supplemented
and modified by eighty-_____ supplemental indentures (such Indenture of Mortgage
as so supplemented and modified being hereinafter called the Mortgage), under
which The Chase Manhattan Bank is now Trustee, and the purchase of the
Bonds by the several Underwriters pursuant to the Underwriting Agreement dated
[date] between you, acting individually and as Representative of the several
Underwriters named in Schedule II thereto, and the Company (the Underwriting
Agreement). Unless otherwise defined herein, capitalized terms used herein shall
have the meanings set forth in the Underwriting Agreement.
- 23 -
We have examined originals, or copies certified to our
satisfaction, of such corporate records of the Company, indentures, agreements
and other instruments, certificates of public officials, certificates of
officers and representatives of the Company and of the Trustee, and other
documents, as we have deemed it necessary to require as a basis for the opinions
hereinafter expressed. As to various questions of fact material to such
opinions, we have, when relevant facts were not independently established,
relied upon certifications by officers of the Company, the Trustee and other
appropriate persons and statements contained in the Registration Statement. 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 from officers of the Company.
On this basis, we are of the opinion that:
1. The Company is a corporation duly organized and existing
under the laws of Virginia and the Company 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, and the Company has
corporate power to conduct its business and to issue the Bonds.
2. All requisite corporate and governmental authorizations
have been given for the issuance of the Bonds and the sale of the Bonds
under the Underwriting Agreement.
3. The Mortgage has been duly authorized, executed and
delivered and so far as it relates to properties in North Carolina and
Virginia is valid and binding except as stated below, and constitutes a
valid lien to the extent that it purports to be one for the benefit of
the holders of the bonds issued thereunder (except that the lien may be
defeated as to real property acquired after recordation of any latest
supplemental indenture by its sale before recordation of a further
supplemental indenture and our opinion, so far as relating to the lien
on certain properties now owned, is accordingly subject to recordation
of the Eighty-______ Supplemental Indenture and except that the lien as
to personal property of the Company held by bailees may be defeated).
The Mortgage contains customary provisions for the enforcement of the
security provided for therein, certain of which may be limited by the
laws of Virginia, West Virginia or North Carolina (but such laws do
not, in our opinion, make inadequate the remedies necessary
- 24 -
for the realization of the benefits of such security) and, as to
nuclear facilities, by the Atomic Energy Act of 1954, as amended, and
regulations thereunder, and may also be limited or rendered unavailable
by bankruptcy, moratorium and similar laws from time to time in force.
We express no opinion as to the validity or enforceability of any
covenant to pay interest on defaulted interest.
4. All the Bonds have been duly executed, authenticated and
delivered and are valid and binding obligations of the Company,
enforceable in accordance with their terms (subject, as to
enforceability, to applicable bankruptcy, moratorium and similar laws
from time to time in force or general principles of equity).
5. The Underwriting Agreement has been duly authorized,
executed and delivered by the Company and is a valid obligation of the
Company.
6. The Registration Statement with respect to the Bonds filed
pursuant to the Securities Act of 1933, as amended (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 Bonds in the manner therein specified.
The statements in regard to our firm made under the caption
EXPERTS in the Prospectus are correct, and we are of the opinion that,
so far as governed by the laws of the United States, North Carolina or
Virginia, the legal conclusions relating to franchises, title to
properties, limitations upon the issuance of bonds and preferred stock
in the Company's Annual Report on Form 10-K incorporated in the
Prospectus by reference and the description of the Bonds contained in
the Prospectus under DESCRIPTION OF THE BONDS are substantially
accurate and fair, including the statements as to North Carolina and
Virginia titles and defects therein and franchises and permits. As to
the statistical statements in the Registration Statement (which
includes the documents incorporated therein by reference), 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, and facilitated the assembly of relevant data. 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 held today
at which the Company satisfied the conditions contained in Paragraph 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
- 25 -
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 and the Prospectus (except the financial
statements and the other financial information included or incorporated
therein by reference, as to which we express no opinion) comply as to
form in all material respects to the requirements of the Securities
Act, the Securities Exchange Act and the Trust Indenture Act, and to
the applicable rules and regulations of the Commission thereunder. We
are further of the opinion that the Mortgage has been duly qualified
under the Trust Indenture Act.
7. Except as set forth in the Registration Statement, there
are no pending legal, administrative or judicial proceedings with
respect to the Company required to be described by Form S-3.
The opinions in paragraphs 6 and 7 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.
We understand that you are relying (we believe that you are
justified in relying, and for our part we rely) on the opinion of Xxxxxxx &
Xxxxx as to all matters governed by the laws of West Virginia, including the
statements made in the Prospectus on their authority.
Yours very truly,
HUNTON & XXXXXXXX
- 26 -
SCHEDULE V
PROPOSED FORM OF OPINION
OF
XXXXXXX & XXXXX
1600 Laidley Tower
P. X. Xxx 000
Xxxxxxxxxx, Xxxx Xxxxxxxx 00000
Re: VIRGINIA ELECTRIC AND POWER COMPANY
First and Refunding Mortgage Bonds of 199_
Series _, ____%, due [date]
[Closing Date]
Virginia Electric and Power Company
P. O. Xxx 00000
Xxxxxxxx, Xxxxxxxx 00000
[name and address of
Representative]
Dear Sirs:
We are familiar with the arrangements for the issuance of
$______________ aggregate principal amount of First and Refunding Mortgage Bonds
of 199_, Series _B, ____%, due [date] (the Bonds), of Virginia Electric and
Power Company (the Company) under an Indenture of Mortgage dated November 1,
1935, as supplemented and modified by eighty-_____ supplemental indentures (the
Mortgage), and the sale thereof pursuant to an Underwriting Agreement dated
[date] between the Company and the Underwriters named in Schedule II thereto
(the Underwriting Agreement), and we have acted as West Virginia counsel for the
Company in that regard.
- 27 -
We are of the opinion that, so far as governed by the laws of
West Virginia:
1. The Company is duly qualified as a foreign corporation in
West Virginia and has corporate power to conduct its business in West
Virginia and issue the Bonds.
2. No governmental authorization is requisite for the issuance
of the Bonds and their sale under the Underwriting Agreement.
3. The Mortgage has been duly authorized, executed and
delivered, is valid and binding (except as stated below) and so far as
it relates to properties in West Virginia constitutes a valid lien to
the extent that it purports to be one for the benefit of the holders of
the bonds issued thereunder (subject as to mortgaged personal
properties, to the filing of the Eighty-_____ Supplemental Indenture in
the office of the Secretary of State of West Virginia and except that
the lien may be defeated as to real property acquired after recordation
of any latest supplemental indenture and before recordation of a
further supplemental indenture and our opinion, so far as relating to
the lien on certain properties now owned, is accordingly subject to
recordation of the Eighty-_____ Supplemental Indentures). The Mortgage
contains customary provisions for the enforcement of the security
provided for therein, certain of which may be limited by the laws of
West Virginia (but such laws do not, in our opinion, make inadequate
the remedies necessary for the realization of the benefits of such
security) and may also be limited or rendered unavailable by
bankruptcy, moratorium and similar laws from time to time in force. We
express no opinion as to the validity or enforceability of any covenant
to pay interest on defaulted interest.
We have assumed, for purposes of the opinions herein
expressed, that all the Bonds have been duly executed, authenticated and
delivered and are valid and binding obligations of the Company, enforceable in
accordance with their terms.
The statements in regard to our firm made under EXPERTS in the
Prospectus relating to the Bonds are correct, and we are of the opinion that the
statements in the Prospectus referred to as being made on our authority
(including the statements as to West Virginia titles and defects therein and
franchises) are substantially accurate and fair. In regard to titles to some of
the properties in West Virginia, we have made no independent investigation of
original records, but our opinion is based solely on reports and opinions by
counsel in whom we have confidence. We assume no responsibility for the accuracy
or completeness of any other statements in the Registration Statement, but we do
not know of any reason to believe that it contains any untrue statement of a
material fact or omits to state a material fact required to be stated or
necessary to make the statements not misleading. The foregoing is made on the
basis that any statement contained in a document incorporated by reference in
the Registration Statement or the Prospectus shall be deemed not to be contained
in the Registration Statement
- 28 -
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.
Very truly yours,
XXXXXXX & XXXXX
- 29 -
