EXHIBIT 1
VIRGINIA ELECTRIC AND POWER COMPANY
Series __ Junior Subordinated Debentures Due 20__
FORM OF UNDERWRITING AGREEMENT
___________, 1997
Xxxxxx Brothers Inc.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Virginia Electric and Power Company, a Virginia public service corporation
(the "Company"), confirms its agreement (the "Agreement") with you and each of
the other Underwriters named in Schedule I hereto (collectively, the
"Underwriters", which term shall also include any underwriter substituted as
hereinafter provided in Section 10 hereof), for whom you are acting as
representative (in such capacity, you shall hereinafter be referred to as the
"Representative"), with respect to the sale by the Company and the purchase by
the Underwriters, acting severally and not jointly, of certain of the Company's
Junior Subordinated Debentures ("Subordinated Debentures"), specifically the
Company's Series __ Junior Subordinated Debentures Due 20__ to be issued in the
amount specified in Schedule I hereto (the "Junior Subordinated Debentures").
The Junior Subordinated Debentures will be issued under the Company's Indenture,
dated as of August 1, 1995, to The Chase Manhattan Bank (formerly known as
Chemical Bank) (the "Trustee"), as supplemented and modified to the date hereof
and as to be supplemented by a supplemental indenture substantially in the form
of Exhibit __ to the Registration Statement referred to below (the "Supplemental
Indenture"). The term "Indenture", as used herein, shall be deemed to refer to
such Indenture as so supplemented and modified.
SECTION 1. REPRESENTATIONS AND WARRANTIES. The Company represents and
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warrants to each Underwriter as follows:
(a) A registration statement, No. 333-__________, on Form S-3, as
amended, for the registration of the Subordinated Debentures under the
Securities Act of 1933, as amended (the "1933 Act"), heretofore filed with
the Securities and Exchange Commission (the "Commission"), a copy of which
as so filed has been delivered to you, has been declared effective (any
preliminary prospectus included in such registration statement being
hereinafter called a "Preliminary Prospectus"; the various parts of such
registration statement, including all exhibits thereto other than the
Statement of Eligibility on Form T-1 of the Trustee under the Trust
Indenture Act of 1939, as amended (the "1939 Act"), each as amended at the
time such part became effective, being hereinafter collectively called the
"Registration Statement;" the prospectus relating to the Subordinated
Debentures included in the Registration
Statement, which prospectus is now proposed to be supplemented by a
supplement relating to the Junior Subordinated Debentures to be filed with
the Commission pursuant to Rule 424(b) under the 1933 Act in the form in
which it is first so filed, as so supplemented, and as may be supplemented
pursuant to the following sentence, being hereinafter called the
"Prospectus"). Whenever the term "Registration Statement", "prospectus",
"Preliminary Prospectus" or "Prospectus" is used herein, it shall be deemed
to include all documents or portions thereof incorporated therein by
reference (the "Incorporated Documents") pursuant to the requirements of
Form S-3 under the 1933 Act, and any reference to any amendment or
supplement to any prospectus, Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any documents filed after the date
of such prospectus, Preliminary Prospectus or Prospectus, as the case may
be, under the Securities Exchange Act of 1934, as amended (the "1934 Act"),
and incorporated therein by reference. So long as the Underwriters are
required pursuant to the 1933 Act to deliver a prospectus to purchasers of
the Junior Subordinated Debentures, the Company will not file any amendment
or supplement to the Registration Statement or the Prospectus unless the
Representative shall have been advised of the proposed amendment or
supplement and the same shall not have been disapproved as to substance by
the Representative or as to form by McGuire, Woods, Battle & Xxxxxx,
L.L.P., who are acting as counsel for the Underwriters.
(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, in form and in substance, with
the provisions of the 1933 Act, 1934 Act, the Trust Indenture Act of 1939,
as amended (the "1939 Act"), rules and regulations promulgated under the
1933 Act ("1933 Act Regulations"), the rules promulgated under the 1934 Act
("1934 Act Regulations"), and the rules and regulations under the 1939 Act
(the "1939 Act Regulations"), and neither the Registration Statement nor
the Prospectus contains an untrue statement of a material fact or omits to
state a 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 subsection (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 to be
modified or superseded for purposes of the Registration Statement or
Prospectus to the extent that the statement has been modified or superseded
by any statement in a subsequently filed Incorporated Document or in the
Registration Statement or Prospectus.
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(c) With respect to the Registration Statement, the conditions for use
of Form S-3, as set forth in the General Instructions thereof, and Rule 415
under the 1933 Act Regulations have been satisfied.
(d) To the best of the Company's knowledge, Deloitte & Touche LLP, the
accountants who certified the financial statements and supporting schedules
included in the Registration Statement, are independent public accountants
as required by the 1933 Act and the 1933 Act Regulations.
(e) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, except as otherwise stated
therein, there has been no material adverse change or, to the best of the
Company's knowledge, any development involving a prospective 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 the Registration Statement and Prospectus.
(f) The Company has been duly incorporated and is validly existing as
a public service corporation in good standing under the laws of the
Commonwealth of Virginia with corporate power and authority to own, lease
and operate its properties and to conduct its business as described in the
Registration Statement and the Prospectus, to enter into and perform its
obligations under this Agreement and the Indenture; and the Company is duly
qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which the character or location of its
properties or the nature or the conduct of its business requires such
qualification, except for any failures to be so qualified or in good
standing which, taken as a whole, would not have a material adverse effect
on the Company.
(g) This Agreement has been duly authorized, executed and delivered by
the Company.
(h) The Indenture has been duly authorized by the Company and, on the
Closing Date, will have been duly executed and delivered by the Company,
and, assuming due authorization, execution and delivery of the Indenture by
the Trustee, the Indenture will, on the Closing Date, constitute a valid
and binding obligation of the Company, enforceable against the Company in
accordance with its terms except to the extent that enforcement thereof may
be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting creditors' rights generally or by general principles
of equity (regardless of whether enforcement is considered in a proceeding
at law or in equity) (the "Bankruptcy Exceptions"); the Indenture will
conform to all statements relating thereto contained in the Prospectus;
and, on the Closing Date, the Indenture will have been duly qualified under
the 1939 Act.
(i) The Junior Subordinated Debentures have been duly authorized by
the Company and, on the Closing Date, will have been duly executed by the
Company
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and, when authenticated in the manner provided for in the Indenture and
delivered against payment therefor as described in the Prospectus, will
constitute valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms except to the extent
that enforcement thereof may be limited by the Bankruptcy Exceptions, will
be in the form contemplated by, and entitled to the benefits of, the
Indenture and will conform to all statements relating thereto in the
Prospectus.
(j) The Junior Subordinated Debentures are subordinated and junior in
right of payment to all "senior indebtedness" (as defined in the
Supplemental Indenture) of the Company.
(k) The Junior Subordinated Debentures, upon issuance thereof, will
conform in all material 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 thereto.
(l) The execution, delivery and performance by the Company of this
Agreement, the Junior Subordinated Debentures, and the Indenture, and the
consummation by the Company of the transactions contemplated herein and
therein and compliance by the Company with its obligations hereunder and
thereunder do not and will not result in any violation of the Articles of
Incorporation or Bylaws of the Company and do not and will not conflict
with, or result in a breach of any of the terms or provisions of, or
constitute a default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the Company
under (A) any contract, indenture, mortgage, loan agreement, note, lease or
other agreement or instrument to which the Company is a party or by which
the Company may be bound or to which any of its properties may be subject
(except for conflicts, breaches or defaults which would not, individually
or in the aggregate, be materially adverse to the Company or materially
adverse to the transactions contemplated by this Agreement), or (B) any
existing applicable law, rule, regulation, judgment, order or decree of any
government, governmental instrumentality or court, domestic or foreign, or
any regulatory body or administrative agency or other governmental body
having jurisdiction over the Company, or any of its properties.
(m) No authorization, approval, consent or order of any court or
governmental authority or agency is necessary in connection with the
issuance and sale of the Junior Subordinated Debentures hereunder, except
(A) such as may be required under the 1933 Act or the 1933 Act Regulations
or state securities laws; (B) the qualification of the Indenture under the
1939 Act and (C) the approval of the Virginia Commission.
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SECTION 2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING.
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Retail - [(a) On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Company
agrees to sell to each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase from the Company, at
the price per security set forth in Schedule II, the number of Junior
Subordinated Debentures set forth in Schedule I opposite the name of such
Underwriter, plus any additional number of Junior Subordinated Debentures that
such Underwriter may become obligated to purchase pursuant to the provisions of
Section 10 hereof. The Underwriters agree to make a public offering of their
respective Junior Subordinated Debentures specified in Schedule I at the initial
public offering price specified in Schedule II hereto.
The purchase price per security to be paid by the several Underwriters for
the Junior Subordinated Debentures shall be an amount equal to the initial
public offering price set forth on Schedule II, which is a fixed price
determined by agreement between the Representative and the Company. The Company
hereby agrees to pay on the Closing Date (as defined below) to the
Representative, for the accounts of the several Underwriters, a commission per
Junior Subordinated Debenture as set forth on Schedule II for the Junior
Subordinated Debentures to be delivered by the Company hereunder on the Closing
Date.]
Institutional - [(a) On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Company agrees to sell to each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase from the Company, at
the price set forth in Schedule II, the principal amount of Junior Subordinated
Debentures set forth in Schedule I opposite the name of such Underwriter, plus
any additional principal amount of Junior Subordinated Debentures that such
Underwriter may become obligated to purchase pursuant to the provisions of
Section 10 hereof. The Underwriters agree to make a public offering of their
respective Junior Subordinated Debentures specified in Schedule I at the initial
price to public specified in Schedule II hereto.
The purchase price per security to be paid by the several Underwriters for
the Junior Subordinated Debentures shall be an amount equal to the initial
public offering price set forth on Schedule II, which is a fixed price
determined by agreement between the Representative and the Company.]
(b) Payment of the purchase price for, and delivery of certificates for,
the Junior Subordinated Debentures shall be made at the offices of Hunton &
Xxxxxxxx, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx or at such other place as shall be
agreed upon by the Representative and the Company, at 10:00 A.M., New York City
time, on the third business
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day (unless postponed in accordance with the provisions of Section 10) after
execution of this Agreement or such other time, place or date as shall be agreed
upon by the Representative and the Company (such time and date of payment and
delivery being herein called the "Closing Date"). Payment shall be made to the
Company by wire transfer of immediately available funds, against delivery of the
Junior Subordinated Debentures, in fully registered form, to you or upon your
order. The Junior Subordinated Debentures shall be delivered in the form of a
certificated global security in denominations equal to the aggregate principal
amount of the Junior Subordinated Debentures upon original issuance and
registered in the name of Cede & Co., as nominee for The Depository Trust
Company. It is understood that each Underwriter has authorized the
Representative, for its account, to accept delivery of, receipt for, and make
payment of the purchase price for, the Junior Subordinated Debentures which it
has agreed to purchase. The Representative, individually and not as
Representative of the Underwriters, may (but shall not be obligated to) make
payment of the purchase price for the Junior Subordinated Debentures to be
purchased by any Underwriter whose check has not been received by the Closing
Date, but such payment shall not relieve such Underwriter from its obligations
hereunder.
The certificate(s) for the Junior Subordinated Debentures will be made
available for examination by the Representative not later than 12:00 Noon, New
York City time, on the last business day prior to the Closing Date.
Retail--[On the Closing Date, the Company will pay, or cause to be paid,
the commission payable at such time to the Underwriters under Section 2(a)
hereof by wire transfer to the Representative of immediately available funds.]
SECTION 3. COVENANTS OF THE COMPANY. The Company covenants with each
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Underwriter as follows:
(a) The Company, on or prior to the Closing Date, will deliver to the
Underwriters conformed copies of the Registration Statement as originally
filed and of all amendments thereto, heretofore or hereafter made,
including any post-effective amendment (in each case including all exhibits
filed therewith, and including unsigned copies of each consent and
certificate included therein or filed as an exhibit thereto, except
exhibits incorporated by reference unless specifically requested). As soon
as the Company is advised thereof, it will advise the Representative orally
of the issuance of any stop order under the 1933 Act with respect to the
Registration Statement, or the institution of any proceedings therefor, of
which the Company shall have received notice, and will use its best efforts
to prevent the issuance of any such stop order and to secure the prompt
removal thereof, if issued. The Company will deliver to the Underwriters
sufficient conformed copies of the Registration Statement and Prospectus
and of all amendments thereto (in each case without exhibits) for
distribution of one to each Underwriter and, from time to time, as many
copies of the Prospectus as the Underwriters may reasonably request for the
purposes contemplated by the 1933 Act.
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(b) The Company will furnish the Underwriters with copies of each
further amendment and supplement to the Prospectus relating to the offering
of the Junior Subordinated Debentures in such quantities as the
Underwriters may from time to time reasonably request. If, during the
period when the delivery of a prospectus shall be required by the 1933 Act
in connection with the sale of any Junior Subordinated Debentures by an
Underwriter or dealer, any event relating to or affecting the Company, or
of which the Company shall be advised in writing by the Underwriters, shall
occur, which in the opinion of the Company or of Underwriters' counsel
should be set forth in a supplement to or an amendment of the Prospectus in
order to make the Prospectus not misleading in the light of the
circumstances when it is delivered, or if for any other reason it shall be
necessary during such period to amend or supplement the Prospectus or to
file under the 1934 Act any document incorporated by reference in the
Prospectus in order to comply with the 1933 Act or the 1934 Act, the
Company forthwith will (i) notify the Underwriters to suspend solicitation
of purchases of the Junior Subordinated Debentures and (ii) at its expense,
make any such filing or prepare and furnish to the Underwriters a
reasonable number of copies of a supplement or supplements or an amendment
or amendments to the Prospectus which will supplement or amend the
Prospectus so that, as supplemented or amended, it will not contain any
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered, not misleading or which
will effect any other necessary compliance. In case any Underwriter is
required to deliver a prospectus in connection with the sale of any Junior
Subordinated Debentures after the expiration of the period specified in the
preceding sentence, the Company, upon the request of such Underwriter, will
furnish to such Underwriter, 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 1933
Act. During the period specified in the second sentence of this
subsection, the Company will continue to prepare and file with the
Commission on a timely basis all documents or amendments required under the
1934 Act and the 1934 Act Regulations; provided, that the Company shall not
file such documents or amendments without also furnishing copies thereof
prior to such filing to the Underwriters and McGuire, Woods, Battle &
Xxxxxx, L.L.P.
(c) The Company will endeavor, in cooperation with the Underwriters,
to qualify the Junior Subordinated Debentures for offering and sale under
the applicable securities laws of such states and the other jurisdictions
of the United States as the Representative may designate; provided,
however, that the Company shall not be obligated to qualify as a foreign
corporation in any jurisdiction in which it is not so qualified.
(d) The Company will make generally available to its security holders
as soon as practicable but not later than 45 days after the close of the
period covered thereby, an earnings statement of the Company (in form
complying with the provisions
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of Rule 158 of the 1933 Act Regulations) covering a twelve-month period
beginning not later than the first day of the Company's fiscal quarter next
following the "effective date" (as defined in Rule 158) of the Registration
Statement.
Retail--[(e) The Company will use best efforts to effect the listing
of the Junior Subordinated Debentures on the New York Stock Exchange.]
(f) During a period of 30 days from the date of this Agreement, the
Company will not, without the Representative's prior written consent,
directly or indirectly, sell, offer to sell, grant any option for the sale
of, or otherwise dispose of, any Junior Subordinated Debentures, any
security convertible into or exchangeable into or exercisable for Junior
Subordinated Debentures or securities substantially similar to the Junior
Subordinated Debentures (except for the Junior Subordinated Debentures
issued pursuant to this Agreement).
SECTION 4. PAYMENT OF EXPENSES. The Company will pay all expenses in
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connection with (i) the printing and filing by it of the Registration Statement
as originally filed and of each amendment thereto, (ii) the preparation,
issuance and delivery of the certificate(s) for the Junior Subordinated
Debentures to the Underwriters, (iii) the fees and disbursements of the
Company's counsel and accountants, (iv) the qualification of the Junior
Subordinated Debentures under securities laws in accordance with the provisions
of Section 3(c) hereof, including filing fees and the fees and disbursements of
counsel for the Underwriters in connection therewith and in connection with the
preparation of any blue sky survey, (v) the printing and delivery to the
Underwriters of copies of the Registration Statement as originally filed and of
each amendment thereto, of each preliminary prospectus, and of the Prospectus
and any amendments or supplements thereto, (vi) the printing and delivery to the
Underwriters of copies of any blue sky survey, (vii) the fee of the National
Association of Securities Dealers, Inc. in connection with its review of the
offering contemplated by this Agreement, if applicable, (viii) the fees and
expenses of the Trustee, including the fees and disbursements of counsel for the
Trustee in connection with the Indenture, (ix) any fees payable in connection
with the rating of the Junior Subordinated Debentures,[(x) the fees and expenses
incurred in connection with the listing of the Junior Subordinated Debentures on
the New York Stock Exchange,] and (xi) the cost and charges of any transfer
agent or registrar and (xii) the cost of qualifying the Junior Subordinated
Debentures with The Depository Trust Company.
In addition, if this Agreement is terminated by the Representative in
accordance with the provisions of Section 5 or Section 9 hereof, the Company
shall reimburse the Underwriters for all of their reasonable out-of-pocket
expenses, including the reasonable fees and disbursements of counsel for the
Underwriters.
SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of
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the Underwriters to purchase and pay for the Junior Subordinated Debentures are
subject to the following conditions:
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(a) 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. If filing of the Prospectus,
or any supplement thereto, is required pursuant to Rule 424(b), the
Prospectus, and any such supplement, shall have been filed in the manner
and within the time period required by Rule 424(b). The Underwriters shall
have received, prior to payment for the Junior Subordinated Debentures, 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.
(b) An order or orders of the Virginia Commission permitting the
transactions contemplated hereby substantially in accordance with the terms
and conditions hereof shall be in full force and effect and shall contain
no provision unacceptable to the Underwriters or the Company (but all
provisions of such order or orders heretofore entered, copies of which have
heretofore been delivered to the Representative, are deemed acceptable to
the Underwriters and the Company and all provisions of such order or orders
hereafter entered shall be deemed acceptable to the Underwriters and the
Company unless within 24 hours after receiving a copy of any such order any
party to this Agreement shall give notice to the other parties to the
effect that such order contains an unacceptable provision).
(c) On the Closing Date the Representative shall have received:
(1) The opinion, dated as of the Closing Date, of Hunton &
Xxxxxxxx, counsel for the Company, substantially in the form attached
hereto as Schedule III.
(2) The opinion, dated as of the Closing Date, of Cravath,
Swaine & Xxxxx, counsel to the Trustee, substantially in the form attached
hereto as Schedule IV.
(3) The opinion, dated as of the Closing Date, of McGuire, Woods,
Battle & Xxxxxx, L.L.P., counsel for the Underwriters, substantially in the
form attached hereto as Schedule V.
(d) At the Closing Date, there shall not have been, since the date
hereof or since the respective dates as of which information is given in
the Registration Statement and the Prospectus, any material adverse change
in the condition, financial or otherwise, or in the earnings or business
affairs of the Company, whether or not arising in the ordinary course of
business, and the Representative shall have received a certificate of the
Chairman of the Board, the President or any Vice President of the Company
and dated as of the Closing Date, to the effect that (i) there has been no
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such material adverse change, (ii) the representations and warranties in
Section 1 hereof are true and correct with the same force and effect as
though expressly made at and as of the Closing Date and (iii) the Company
has complied with all agreements and satisfied all conditions on its part
to be performed or satisfied on or prior to the Closing Date.
(e) On the Closing Date, the Representative shall have received from
Deloitte & Touche LLP a letter dated such date, in form and substance
satisfactory to the Representative.
(f) On the Closing Date, counsel for the Underwriters shall have been
furnished with such documents and opinions as they may require for the
purpose of enabling them to pass upon the issuance and sale of the Junior
Subordinated Debentures as herein contemplated and related proceedings, or
in order to evidence the accuracy of any of the representations or
warranties, or the fulfillment of any of the conditions, herein contained;
and all proceedings taken by the Company, in connection with the issuance
and sale of the Junior Subordinated Debentures as herein contemplated shall
be satisfactory in form and substance to the Representative and McGuire,
Woods, Battle & Xxxxxx, L.L.P., counsel for the Underwriters.
(g) On the Closing Date, there shall not have occurred any decrease in
the ratings of any of the debt securities of the Company or of the Junior
Subordinated Debentures by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the 1933 Act).
Retail--[(h) On the Closing Date, the Junior Subordinated Debentures
shall have been approved for listing on the New York Stock Exchange upon
notice of issuance.]
If any condition specified in this Section shall not have been fulfilled
when and as required to be fulfilled, this Agreement may be terminated by the
Representative by notice to the Company at any time prior to the Closing Date,
and such termination shall be without liability of any party to any other party
except as provided in Sections 4, 7 and 9(b) hereof.
SECTION 6. CONDITIONS OF THE OBLIGATION OF THE COMPANY. The obligations
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of the Company shall be subject to the conditions set forth in the first
sentence of Section 5(a) and in Section 5(b). In case such conditions shall not
have been fulfilled, this Agreement may be terminated by the Company by mailing
or delivering written notice thereof to the Underwriters. Any such termination
shall be without liability of any party to any other party except as otherwise
provided in Sections 4, 7 and 9(b) hereof.
SECTION 7. INDEMNIFICATION.
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(a) The Company agrees to jointly and severally indemnify and hold harmless
each Underwriter and each person, if any, who controls any Underwriter within
the meaning of
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Section 15 of the 1933 Act or Section 20(a) of the 1934 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 1933 Act, the 1934 Act or any other statute
or common law and to reimburse each such Underwriter and controlling person for
any legal or other expenses (including, to the extent hereinafter provided,
reasonable 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
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
Junior Subordinated Debentures by such Underwriter to any person if a copy of
the Prospectus (as supplemented or amended, if any supplements or amendments
which have been furnished to the Underwriters), which Prospectus cures any
omission or misstatement upon which such losses, claims, damages or liabilities
are based, 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; and provided, further, however, that the indemnity agreement contained
in this Section 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 the Prospectus. The indemnity
agreement of the Company contained in this Section and the representations and
warranties of the Company contained in Section 1 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 Junior Subordinated Debentures.
(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
1933 Act or Section 20(a) of the 1934 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 1933 Act, the 1934 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 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
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document as amended or supplemented (if any amendments or supplements thereof
shall have been furnished), or any preliminary prospectus (if and when used
prior to the effective date of the Registration Statement), or the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, if such statement or
omission was made in reliance upon information furnished herein or in writing to
the Company by or on behalf of such Underwriter for use in the Registration
Statement or the Prospectus or any amendment or supplement to either thereof, or
any preliminary prospectus. The indemnity agreement of the respective
Underwriters contained in this Section 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 Junior Subordinated Debentures.
Each Underwriter represents and warrants that its commitment to buy the
Junior Subordinated Debentures will not result in a violation of the financial
responsibility requirements of Rule 15c3-1 under the 1934 Act.
(c) The Company and each of the Underwriters agree that, upon the receipt
of notice of the commencement of any action against the Company or any of its
officers or directors, or any person controlling the Company, or against 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 (in
addition to one local counsel, if necessary, reasonably satisfactory to all
parties), representing the indemnified parties under (a), as the case may be, of
this Section 7 who are parties to
12
such action), (ii) the indemnifying party shall have elected not to assume the
defense of such action, (iii) the indemnifying party shall not have employed
counsel satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of the commencement of the action, or (iv)
the indemnifying party has authorized the employment of counsel for the
indemnified party at the expense of the indemnifying party.
(d) If the indemnification provided for in this Section 7 is unavailable to
or insufficient to hold harmless an indemnified party under subsection (a) 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 the Underwriters, on the other, in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations, including relative benefit. The relative fault shall
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact required to be stated therein or necessary in order to make the
statements therein not misleading relates to information supplied by the Company
on the one hand or by the Underwriters on the other and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The parties hereto agree that it would not be just
and equitable if contribution pursuant to this subsection (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 subsection
(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 subsection (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 0000
Xxx) 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 their respective
underwriting percentages determined by the ratio which the original purchase
obligation of any Underwriter (which is the number of Junior Subordinated
Debentures set forth opposite their names in Schedule I hereto, or such amount
increased as provided in Section 10 below) bears to the total number of Junior
Subordinated Debentures.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
---------------------------------------------------------------
All representations, warranties and agreements contained in this
Agreement, or contained in certificates of officers 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 controlling person, or
by or on behalf of the Company and shall survive delivery of the Junior
Subordinated Debentures to the Underwriters.
13
SECTION 9. TERMINATION OF AGREEMENT.
------------------------
(a) The Representative may terminate this Agreement, by notice to the
Company, at any time at or prior to the Closing Date (i) if there has been,
since the date of this Agreement or since the respective dates as of which
information is given in the Registration Statement, any material adverse change
in the condition, financial or otherwise, of the Company, whether or not arising
in the ordinary course of business, (ii) if there has occurred any material
adverse change in the financial markets in the United States or elsewhere or any
outbreak of hostilities or escalation thereof or other calamity or crisis the
effect of which is such as to make it, in the judgment of the Representative,
impracticable to market the Junior Subordinated Debentures or to enforce
contracts for the sale of the Junior Subordinated Debentures, (iii) if trading
in the securities of the Company or its affiliates or the Junior Subordinated
Debentures has been suspended by the Commission, or if trading generally on the
New York Stock Exchange has been suspended, limited or restricted or minimum or
maximum prices for trading have been fixed, or maximum ranges for prices for
securities have been required, by said exchange or by order of the Commission or
any other governmental authority, or if a banking moratorium has been declared
by either Federal or New York authorities or (iv) if there has been any decrease
in the ratings of any of the debt securities of the Company or of the Junior
Subordinated Debentures by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the 1933 Act).
(b) If this Agreement shall be terminated by the Underwriters pursuant to
subsection (a) 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 Section
4) 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
Sections 4 and 7.
SECTION 10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one or more
------------------------------------------
of the Underwriters shall fail on Closing Date to purchase the Junior
Subordinated Debentures that it or they are obligated to purchase under this
Agreement (the "Defaulted Securities"), the Representative shall have the right,
within 24 hours thereafter, to make arrangements for one or more of the non-
defaulting Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Defaulted Securities in such amounts as may be agreed upon
and upon the terms herein set forth; if, however, the Representative shall not
have completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
Junior Subordinated Debentures, each of the non-defaulting Underwriters
shall be obligated, severally and to jointly, to purchase the full amount
thereof in the proportions that
14
their respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the Junior
Subordinated Debentures, this Agreement shall terminate without liability
on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement, either the Representative or the Company shall have the right to
postpone the Closing Date for a period not exceeding seven days in order to
effect any required changes in the Registration Statement or Prospectus or in
any other documents or arrangements.
SECTION 11. NOTICES. 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 directed to the Representative at 0 Xxxxx Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention of Managing Director, Utilities
Investment Banking; notices to the Company shall be directed to it at Xxx Xxxxx
Xxxxx Xxxxx, Xxxxxxxx, Xxxxxxxx 00000, attention of Treasurer.
SECTION 12. PARTIES. This Agreement shall inure to the benefit of and
-------
be binding upon the Underwriters and the Company and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters and the Company and their respective successors and the controlling
persons and officers and directors referred to in Section 7 and their heirs and
legal representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Underwriters and the Company and their respective
successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Junior Subordinated Debentures from any
Underwriter shall be deemed to be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. This Agreement shall be governed by
----------------------
and construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed in said State. Except as otherwise set
forth herein, specified times of day refer to New York City time.
SECTION 14. COUNTERPARTS. This Agreement may be executed by any one or
------------
more of the parties hereto in any number of counterparts, each of which shall be
deemed to be an original, but all such respective counterparts shall together
constitute one and the same instrument.
15
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement between
the Underwriters and the Company in accordance with its terms.
Very truly yours,
VIRGINIA ELECTRIC AND POWER COMPANY
By:
-------------------------------
Title:
----------------------------
CONFIRMED AND ACCEPTED,
as of the date first above written
XXXXXX BROTHERS INC.
By:
-----------------------------------------
Authorized Signatory
For itself and as Representative of the other
Underwriters named in Schedule I hereto.
16
SCHEDULE I
NAME OF UNDERWRITER
PRINCIPAL AMOUNT
OF JUNIOR SUBORDINATED
DEBENTURES TO BE
PURCHASED
SCHEDULE II
Retail--[Initial price per
Security (and purchase
price per security to be paid by
the several Underwriters):
Compensation per Security
to be paid by the Company to the
several Underwriters in respect of
their commitments: $______ for any
Junior Subordinated Debentures sold to certain
institutions; $______ for
Junior Subordinated Debentures sold to other purchasers]
Institutional--[Title of Securities: Series __ Junior Subordinated Debentures
Due 20__
Aggregate Principal Amount: $_______________
Initial Price to Public:
% of the principal amount of the Junior Subordinated Debentures plus
accrued interest, if any, from the date of the issuance
Initial Purchase Price to be Paid by Underwriters:
% of the principal amount of the Junior Subordinated Debentures]
SCHEDULE III
PROPOSED FORM OF OPINION
OF
HUNTON & XXXXXXXX
Riverfront Plaza, East Tower
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
RE: VIRGINIA ELECTRIC AND POWER COMPANY
Series ___ Junior Subordinated Debentures Due 20__
(Closing Date)
Xxxxxx Brothers Inc., as Representative
3 World Financial Center
New York, New York 10285
Virginia Electric and Power Company
Series ___ Junior Subordinated Debentures Due 20__
---------------------------------------------------
Dear Sirs:
We have acted as counsel to Virginia Electric and Power Company (the
Company) in connection with its issuance and sale of its Series ___ Junior
Subordinated Debentures Due 20__ (the Junior Subordinated Debentures). The
Junior Subordinated Debentures are being sold to you today pursuant to the terms
of an Underwriting Agreement dated __________, 1997, between the Company and
you, as Representative of the Underwriters (the Underwriting Agreement). This
Opinion is being delivered to you as Representative pursuant to Section 5(c)(1)
thereof.
In rendering the opinions expressed below, we have examined the following
documents:
1. The registration statement on Form S-3 (No. 333- ) pertaining to the
Junior Subordinated Debentures (the Registration Statement, which includes
exhibits thereto and documents incorporated by reference), filed under the
Securities Act of 1933, as amended (the Act), and the prospectus dated
____________, 1997 filed with the Securities and Exchange Commission on
_______________, 1997 and prospectus supplement dated ___________, 1997
(collectively, the Prospectus), pursuant to which the Junior Subordinated
Debentures were offered and sold;
2. the Subordinated Note Indenture by and between the Company and The Chase
Manhattan Bank (formerly Chemical Bank) dated as of August 1, 1995, as
heretofore supplemented and amended and as further supplemented by the
____________ Supplemental Indenture, dated as of ______ ___, 19__ (collectively,
the Indenture);
3. the form of certificate evidencing the Junior Subordinated Debentures;
and
4. the Underwriting Agreement.
For purposes of the opinions expressed below, we have assumed (i) the
authenticity of all documents submitted to us as originals, (ii) the conformity
to the originals of all documents submitted as certified or photostatic copies
and the authenticity of the originals of such copies, (iii) the genuineness of
signatures not witnessed by us, (iv) the legal capacity of natural persons, and
(v) the due authorization, execution and delivery of all documents by all
parties and the validity and binding effect thereof (other than the
authorization, execution and delivery of documents by the Company and the
validity and binding effect upon the Company.)
As to factual matters, we have relied upon representations included in the
Agreements, in documents delivered at the closing, and upon certificates of
officers of the Company, and upon certificates of public officials. Whenever the
phrases "to our knowledge" or "known to us" are used herein, it refers to the
actual knowledge of the attorneys of this firm involved in the representation of
the Company.
The enforceability of the documents and instruments is subject to the
provisions of the bankruptcy, insolvency, reorganization, fraudulent conveyance
or moratorium laws or laws relating to or affecting the rights of creditors
generally and principles of equity, whether considered at law or in equity.
I.
Based upon, and subject to, the foregoing and such other documents and
information as we have considered necessary for the purposes hereof, we are of
the opinion that:
1. The Company is a corporation duly organized and existing under the
laws of Virginia and is duly qualified as a foreign corporation in West Virginia
and North Carolina. Neither the nature of the Company's business nor the
properties it owns or holds under lease makes necessary qualification as a
foreign corporation in any state where it is not now so qualified.
2. The Company has the corporate power and authority to own, lease
and operate its properties and to conduct its business as described in the
Registration Statement and to enter into and perform its obligations under the
Underwriting Agreement and the Indenture.
3. The execution, delivery and performance by the Company of the
Underwriting Agreement have been duly authorized by all necessary corporate
action, and the Underwriting Agreement has been duly executed and delivered by
the Company.
4. No authorization, approval, consent or order of any court or
governmental authority or agency is required in connection with the offering,
issuance or sale of the Junior Subordinated Debentures, except (a) such as may
be required under the Act, (b) the qualification of the Indenture under the
Trust Indenture Act of 1939; (c) the approval of the State Corporation
Commission of Virginia, which approval has been obtained and is sufficient to
permit the Company to enter into the transactions contemplated by the
Underwriting Agreement and the Indenture; and (d) such as may be required under
state securities or "Blue Sky" laws.
5. The Indenture has been duly authorized, executed and delivered by the
Company, and, assuming such agreement was, contrary to the intention stated
therein, governed by Virginia law, would constitute a valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms.
6. The Junior Subordinated Debentures have been duly authorized and
executed by the Company and, when authenticated by the Trustee in the manner
provided in the Indenture and delivered against payment therefor, and assuming
the Junior Subordinated Debentures were, contrary to the intention stated
therein, governed by Virginia law, would constitute valid and binding
obligations of the Company, enforceable against the Company in accordance with
their terms.
7. The Registration Statement is effective under the Act and, to our
knowledge, no stop order suspending the effectiveness of the Registration
Statement has been issued and not withdrawn, and no proceedings for that purpose
have been instituted or are pending or contemplated under the Act.
8. The Indenture has been duly qualified under the Trust Indenture Act of
1939, as amended.
9. The statements and legal conclusions contained in the Prospectus
under the caption "Certain Federal Income Tax Consequences" are correct in all
material respects.
II.
We have participated in various conferences with the officers and directors
of the Company and its independent certified public accountants. In some
conferences you and your counsel also participated. At those conferences, the
contents of the Registration Statement and Prospectus were discussed and
revised. Since the dates of those conferences, we have inquired of certain
officers whether there has been any material change in the affairs of the
Company.
Because of the inherent limitations in the independent verification of
factual matters and the character of determinations involved in the preparation
of registration statements under the Act, we are not passing upon, do not assume
any responsibility for and make no representations that we have independently
verified the accuracy, completeness or fairness of the statements contained in
the Registration Statement or the Prospectus, except as set forth in Paragraph
9 above. Also, we do not express any opinion or belief as to the financial
statements or other financial or statistical information contained in the
Registration Statement. However, subject to the foregoing, on the basis of our
participation in the conferences referenced above and our examination of the
documents referenced herein, we advise you that: (a) in our opinion, the
Registration Statement, when it became effective, and the Prospectus, as of its
date and as of the date hereof (other than the financial statements, schedules
and other financial data included therein or excluded therefrom, as to which we
express no opinion), comply as to form in all material respects with the
requirements of the Act and the rules and regulations promulgated thereunder;
(b) we do not know of any contracts or documents of a character required to be
described in the Registration Statement or Prospectus or required to be filed as
exhibits to the Registration Statement that are not described or filed as
required; and (c) except as set forth in the Registration Statement, we do not
know of any legal, administrative or judicial proceedings with respect to the
Company that are required to be described therein. Further, nothing has come to
our attention that leads us to believe that the Registration Statement, when it
became effective, contained any untrue statement of a material fact or omitted
to state any material fact required to be stated therein or necessary to make
the statements therein not misleading; or that the Prospectus, as of its date
and as of the date hereof, contained or contains any untrue statement of a
material fact or omitted or omits to state any material fact required to be
stated therein or necessary to make the statements, in light of the
circumstances under which they were made, not misleading; except that we make no
statement with respect to the financial statements or other financial or
statistical data included therein or excluded therefrom. The foregoing assumes
that any statement contained in a document incorporated by reference 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 document incorporated by
reference or in the Registration Statement or Prospectus.
We do not purport to express an opinion on any laws other than those
of the Commonwealth of Virginia and the United States of America. This opinion
letter may not be relied upon by, nor may copies be delivered to, any person
without our prior written consent.
Yours very truly,
HUNTON & XXXXXXXX
SCHEDULE IV
PROPOSED FORM OF OPINION
OF
CRAVATH, SWAINE & XXXXX
Worldwide Plaza
000 0xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
RE: VIRGINIA ELECTRIC AND POWER COMPANY
Series ___ Junior Subordinated Debentures Due 20__
(Closing Date)
Xxxxxx Brothers Inc., as Representative
0 Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
We have acted as counsel to The Chase Manhattan Bank (formerly known as
Chemical Bank) (the "Bank") in connection with (a) the Subordinated Note
Indenture, dated as of August 1, 1995 as heretofore supplemented and amended
(the "Original Indenture"), between Virginia Electric and Power Company (the
"Company") and the Bank, as Trustee and as further supplemented by (b) the
____________ Supplemental Indenture dated as of __________, 1997 (together with
the Original Indenture, herein called the "Indenture"), between the Company and
the Bank, as Trustee.
In that connection, we have examined originals, or copies certified or
otherwise identified to our satisfaction, of such documents, records and other
instruments as we have
deemed necessary or appropriate for the purpose of this opinion, including
copies of the Indenture and certain resolutions adopted by the Board of
Directors of the Bank.
Based upon the foregoing, we are of the opinion that:
1) the Bank has been duly incorporated and is validly existing as a
banking corporation in good standing under the laws of the State of New
York;
2) the Bank has the corporate trust power and authority to execute,
deliver and perform its duties under the Indenture, has duly executed and
delivered the Indenture, and, insofar as the laws governing the trust
powers of the Bank are concerned and assuming due authorization, execution
and delivery thereof by the Company, the Indenture constitutes a legal,
valid and binding agreement of the Bank, enforceable against the Bank in
accordance with its terms (subject to applicable bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium or other laws affecting
creditors' rights generally from time to time in effect and subject, as to
enforceability, to general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law).
3) the execution, delivery and performance by the Bank of the Indenture
does not conflict with or constitute a breach of the charter or bylaws of
the Bank.
4) no approval, authorization or other action by, or filing with, any
governmental authority of the United States of America or the State of New
York having jurisdiction over the trust powers of the Bank is required in
connection with the execution and delivery by the Bank of the Indenture, or
the performance by the Bank of its duties thereunder, except such as have
been obtained, taken or made.
We are admitted to practice in the State of New York, and we express no
opinion as to matters governed by any laws other than the laws of the State of
New York and the Federal law of the United States of America. We are furnishing
this opinion to you solely for your benefit. This opinion is not to be used,
circulated, quoted or otherwise referred to for any other purpose.
Very truly yours,
CRAVATH, SWAINE & XXXXX
SCHEDULE V
PROPOSED FORM OF OPINION
OF
MCGUIRE, WOODS, BATTLE & XXXXXX, L.L.P.
Xxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
RE: VIRGINIA ELECTRIC AND POWER COMPANY
Series ___ Junior Subordinated Debentures Due 20__
(Closing Date)
Xxxxxx Brothers Inc., as Representative
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
We have acted as counsel for the several underwriters (the "Underwriters")
named in the Underwriting Agreement dated ________, 1997 (the "Underwriting
Agreement") with Virginia Electric and Power Company (the "Company") in
connection with the purchase by the several Underwriters of the Company's Series
___ Junior Subordinated Debentures Due 20__ (the "Junior Subordinated
Debentures"), which have been registered pursuant to the Company's registration
statement on Form S-3 (No. 333- ). All terms not otherwise defined herein
shall have the meanings set forth in the Underwriting Agreement.
We have examined originals or copies, certified or otherwise identified to
our satisfaction, of such documents, corporate records, certificates of public
officials, certificates
of officers and representatives of the Company and other instruments as we
deemed necessary or advisable for the purpose of rendering this opinion. 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 and other appropriate persons and statements contained in the
Registration Statement hereinafter mentioned.
We have also participated in the preparation of the Company's registration
statement on Form S-3 (No. 333- ) (other than the documents incorporated
by reference in the prospectus included therein (the "Incorporated Documents")),
filed by the Company with the Securities and Exchange Commission (the
"Commission") pursuant to the Securities Act of 1933, as amended (the "Act").
Although we did not participate in the preparation of the Incorporated
Documents, we have reviewed such documents. In addition, we have reviewed the
order of the Commission that declared the Registration Statement effective under
the Act on _________, 1997. The registration statement (including the
Incorporated Documents and the information deemed to be part of the registration
statement at that time pursuant to Rule 430A of the Commission's rules and
regulations under the Act), is hereinafter referred to as the "Registration
Statement," and the final prospectus dated ________, 1997 in the form filed with
the Commission pursuant to Rule 424(b) of its rules and regulations under the
Act is hereinafter referred to as the "Prospectus."
On the basis of the foregoing, 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.
C. The Indenture has been duly authorized, executed and delivered by,
and, assuming such Indenture were, contrary to the intention stated therein,
governed by Virginia law, would constitute a valid and binding obligation of,
the Company and has been duly qualified under the 1939 Act, except that we
express no opinion as to the validity or enforceability of any covenant to pay
interest on defaulted interest and except that the enforceability thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting creditors' rights generally from time to time in force and
general principles of equity.
D. The Junior Subordinated Debentures have been duly authorized by the
Company and, when issued and delivered by the Company against payment of the
consideration set forth in the Underwriting Agreement will have been duly
issued.
E. The Registration Statement has become effective and remains in effect
at this date, and the Prospectus, including all Incorporated Documents
constituting a part thereof, may lawfully be used for the purposes specified in
the Securities Act in connection with the
offer for sale and the sale of the Junior Subordinated Debentures in the manner
therein specified.
The Registration Statement and the Prospectus (except the financial
statements incorporated by reference therein, as to which we express no opinion)
appear on their face to be appropriately responsive in all material respects to
the requirements of the Securities Act, and to the applicable rules and
regulations of the Commission thereunder.
We have 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 Incorporated Documents and such of the
corporate records of the Company as we deemed advisable. As to the statistical
statements in the Registration Statement (which includes the Incorporated
Documents), we have relied solely on the officers of the Company. As to other
matters, 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. None of the foregoing disclosed to
us any information which gives us reason to believe that the Registration
Statement or the Prospectus contained (except the financial statements
incorporated by reference therein, as to which we express no opinion) on the
date the Registration Statement became effective or now contains any untrue
statement of a material fact or omitted on said date or now omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading. The foregoing opinion is given on the basis that any
statement contained in an Incorporated Document shall be deemed not to be
contained in the Registration Statement or Prospectus if the statement has been
modified or superseded by any statement in a subsequently filed Incorporated
Document or in the Registration Statement or Prospectus.
F. An appropriate order of the Virginia Commission with respect to the
transactions contemplated by 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 Junior Subordinated Debentures as contemplated
by the Underwriting Agreement.
We are members of the Bar of the Commonwealth of Virginia only and we
express no opinion as to any matters governed by any law other than the law of
the Commonwealth of Virginia and the federal law of the United States of
America. This opinion is rendered solely to you in connection with the above
matter. This opinion may not be relied upon by you for any other purpose or
relied upon by or furnished to any other person without our prior written
consent.
Very truly yours,
MCGUIRE, WOODS, BATTLE & XXXXXX, L.L.P.
