Washington Gas Light Company
$250,000,000
Medium-Term Notes, Series D
DISTRIBUTION AGREEMENT
January 24, 0000
Xxx Xxxx, Xxx Xxxx
Salomon Brothers Inc
Seven Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X. Xxxx & Co.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxx Xxxxx, 00xx Xxxxx
World Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
PaineWebber Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Washington Gas Light Company, a District of Columbia and
Virginia corporation (the "Company"), confirms its agreement with each of you
with respect to the issue and sale by the Company of up to $250,000,000
aggregate principal amount of its Medium-Term Notes, Series D (the "Notes"). The
Company proposes to issue the Notes under its Indenture, as supplemented, (the
"Indenture") dated as of September 1, 1991 to The Bank of New York, as trustee
(the "Indenture Trustee").
The Notes will be issued in minimum denominations of $1,000
and in denominations that are integral multiples thereof (unless otherwise
specified by the Company), will be issued only in fully registered form and will
have the annual interest rates, maturities and, if appropriate, other terms set
forth in a supplement or supplements to the Prospectus referred to below. The
Notes will be issued, and the terms thereof established, in accordance with the
Indenture and, in the case of Notes sold pursuant to Section 2(a), the
Administrative Procedures attached hereto as Exhibit A (the "Procedures"). The
Procedures may only be amended by written agreement of the Company and you after
notice to, and with the approval of, the Indenture Trustee. For the purposes of
this Agreement, the term "Agent" shall refer to any of you acting solely in the
capacity as agent for the Company pursuant to Section 2(a) and not as principal
(together, the "Agents"), the term "Purchaser" shall refer to any of you acting
solely as principal pursuant to Section 2(b) and not as agent, and the term
"you" shall refer to you together whether at any time any of you is acting in
both such capacities or in either such capacity.
1. Representations and Warranties. The Company represents and
warrants to, and agrees with, you as set forth below in this Section 1. Certain
terms used in this Section 1 are defined in paragraph (c) hereof.
(a) The Company meets the requirements for use of Form S-3
under the Securities Act of 1933, as amended (the "Act"), and has filed
with the Securities and Exchange Commission (the "Commission") two
registration statements on such Form (File Numbers: 33-57039 and
333-18965) (registration statement No. 333-18965 constituting a
post-effective amendment to registration statement No. 33-57039), each
including a basic prospectus, each of which has become effective, for
the registration under the Act of up to $250,000,000 aggregate
principal amount of Notes. Such registration statements, as amended at
the date of this Agreement, meet the requirements set forth in Rule
415(a)(1)(ix) or (x) under the Act and comply in all other material
respects with said Rule. The Company has filed or will file with the
Commission pursuant to the applicable paragraph of Rule 424 under the
Act, a supplement or supplements to the form of prospectus included in
such registration statement No. 333-18965 relating to the Notes and the
plan of distribution thereof (such supplements being hereinafter called
a "Prospectus Supplement"). In connection with the sale of Notes, the
Company proposes to file with the Commission pursuant to the applicable
paragraph of Rule 424 under the Act further supplements to the
Prospectus Supplement providing for the specification of or a change in
the interest rates, if any, maturity dates, issuance prices, redemption
terms and prices, if any, and, if appropriate, other terms of the Notes
sold pursuant hereto or the offering thereof (any such supplement being
hereinafter called a "Pricing Supplement").
(b) At each of the following times: (i) as of the Execution
Time, (ii) on the Effective Date, (iii) when any supplement to the
Prospectus is filed with the Commission, (iv) as of the date of each
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acceptance by the Company of an offer for the Purchase of Notes
(whether to such Agent as principal or through such Agent as agent) and
(v) at the date of delivery by the Company of any Notes sold hereunder
(a "Closing Date") (1) each Registration Statement, as amended as of
any such time, and the Prospectus, as supplemented as of any such time,
the Indenture, as amended or supplemented as of any such time, complied
or will comply in all material respects with the applicable
requirements of the Act, the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act"), and the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), and the respective rules and
regulations thereunder; (2) each Registration Statement, as amended as
of any such time, did not or will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not
misleading; and (3) the Prospectus, as supplemented as of any such
time, will not include any untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; provided, however, that the Company makes no
representations or warranties as to (A) that part of any Registration
Statement which shall constitute the Statement of Eligibility (Form
T-1) under the Trust Indenture Act of the Indenture Trustee or (B) the
information contained in or omitted from any Registration Statement or
the Prospectus (or any supplement thereto) in reliance upon and in
conformity with information furnished in writing to the Company by any
of you specifically for use in connection with the preparation of any
Registration Statement or the Prospectus (or any supplement thereto).
(c) The terms which follow, when used in this Agreement, shall
have the meanings indicated. The term "Effective Date" shall mean the
later of (i) each date that each Registration Statement and any
post-effective amendment or amendments thereto became or become
effective or (ii) the time and date of the filing of the Company's most
recent Annual Report on Form 10-K. "Execution Time" shall mean the date
and time that this Agreement is executed and delivered by the parties
hereto. "Basic Prospectus" shall mean the form of basic prospectus
relating to the Securities contained in registration statement No.
333-18965, which prospectus, pursuant to Rule 429 under the Act, also
relates to registration statement No. 33-57039 at the Effective Date
(unless such basic prospectus has been amended by the Company
subsequent to the Effective Date, in which case "Basic Prospectus"
shall mean the form of basic prospectus as so amended). "Prospectus"
shall mean the Basic Prospectus as supplemented by the Prospectus
Supplement and as it may be further amended or supplemented at the
particular time referred to. "Registration Statement" shall mean each
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registration statement referred to in paragraph (a) above, including
incorporated documents, exhibits and financial statements, as it may be
amended at the particular time referred to, and sometimes referred to
herein separately as "Registration Statement No. 33-57039" or
"Registration Statement No. 333-18965". "Rule 415" and "Rule 424" refer
to such rules under the Act. Any reference herein to any Registration
Statement, the Basic Prospectus, the Prospectus Supplement or the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 which
were filed under the Exchange Act on or before the Effective Date of
each Registration Statement or the issue date of the Basic Prospectus,
the Prospectus Supplement or the Prospectus, as the case may be; and
any reference herein to the terms "amend", "amended", "amendment" or
"supplement" with respect to each Registration Statement, the Basic
Prospectus, the Prospectus Supplement or the Prospectus shall be deemed
to refer to and include the filing of any document under the Exchange
Act after the Effective Date of each Registration Statement or the
issue date of the Basic Prospectus, the Prospectus Supplement or the
Prospectus, as the case may be, deemed to be incorporated therein by
reference.
(d) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included or incorporated by reference in Registration Statement No.
333-18965 and the Prospectus, any material loss or interference with
its business from fire, explosion, flood or other calamity, whether or
not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in Registration Statement No. 333- 18965 and the
Prospectus; and, since the respective dates as of which information is
given in Registration Statement No. 333-18965 and the Prospectus, there
has not been any change in the capital stock (other than pursuant to
the Company's Dividend Reinvestment and Common Stock Purchase Plan, any
other stock purchase, savings, bonus, incentive, or similar plan, or
conversions of convertible securities into common stock) or long-term
debt (other than any redemptions or purchases of First Mortgage Bonds
or Medium Term Notes, normal amortization of debt premium and discount,
bank or finance company borrowings and repayments or additional
issuances or repurchases of commercial paper) of the Company and its
subsidiaries taken as a whole or any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries taken as a whole, otherwise than as set forth or
contemplated in Registration Statement No. 333-18965 and the
Prospectus.
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(e) Each of Crab Run Gas Company, Hampshire Gas Company,
Shenandoah Gas Company (collectively the "Subsidiaries", it being
understood that if one or more of such companies shall merge with
another of such companies or with the Company, the term "Subsidiaries"
shall only include the surviving company if the merger is with another
of such companies and shall not include such company if the merger is
with the Company) and the Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation, with power and authority
(corporate and other) to own its properties and conduct its business as
described in the Prospectus and is duly qualified to do business in
each jurisdiction in which it owns or leases real property or in which
the conduct of its business requires such qualification except where
the failure to be so qualified, considering all such cases in the
aggregate, does not involve a material risk to the business,
properties, financial position or results of operations of the Company
and its subsidiaries taken as a whole; and all of the outstanding
shares of capital stock of each of the Subsidiaries have been duly
authorized and validly issued, are fully paid and nonassessable and are
owned beneficially by the Company subject to no security interest,
other encumbrance or adverse claim.
(f) The creation, issuance and sale of the Notes have been
duly and validly authorized by the Company and, when executed and
authenticated in accordance with the provisions of the Indenture, the
Notes will constitute valid and legally binding obligations of the
Company entitled to the benefits provided by the Indenture, which will
be substantially in the form filed as an exhibit to each Registration
Statement; the Indenture has been duly authorized, executed and
delivered by the Company and constitutes a valid and legally binding
instrument, enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws
of general applicability relating to or affecting creditors' rights and
to general equity principles; and the Notes and the Indenture conform
to the descriptions thereof in the Prospectus.
(g) The issue and sale of the Notes and the compliance by the
Company with all of the provisions of the Notes, the Indenture, this
Agreement and any Terms Agreement, and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach of any of the terms or provisions of, or constitute
a default under, any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which the Company is a party or by
which the Company is bound or to which any of the property assets of
the Company is subject, nor will such action result in any violation of
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the provisions of the Company's Charter, as amended, or the Bylaws of
the Company or any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Company or any of its property or assets; and no consent, approval,
authorization, order, registration or qualification of or with any such
court or governmental agency or body is required for the issue and sale
of the Notes or the consummation by the Company of the other
transactions contemplated by this Agreement or any Terms Agreement or
the Indenture except such as have been prior to the Execution Time,
obtained under the Act and the Trust Indenture Act, and except for
filings with and the orders from the Public Service Commission of the
District of Columbia and the State Corporation Commission of Virginia
authorizing the issuance and sale by the Company of the Notes subject
to certain conditions set forth therein, both of which orders have been
obtained and are in full force and effect.
(h) Other than as set forth or contemplated in the Prospectus,
there are no legal or governmental proceedings pending to which the
Company or any of its subsidiaries is a party or of which any property
of the Company or any of its subsidiaries is the subject which, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a material adverse effect on the
consolidated financial position, stockholders' equity or results of
operations of the Company and its subsidiaries; and, to the best of the
Company's knowledge, no such proceedings are threatened or contemplated
by governmental authorities or threatened by others.
(i) There are no contracts or documents of the Company or any
of its subsidiaries that are required to be described in each
Registration Statement or the Prospectus or to be filed as exhibits to
each Registration Statement by the Act or by the rules and regulations
thereunder that have not been so described or filed.
2. Appointment of Agents; Solicitation by the Agents of Offers
to Purchase; Sales of Notes to a Purchaser. (a) Subject to the terms and
conditions set forth herein, the Company hereby authorizes each of the Agents to
act as its agent to solicit offers for the purchase of all or part of the Notes
from the Company. On the basis of the representations and warranties, and
subject to the terms and conditions set forth herein, each of the Agents agrees,
as agent of the Company, to use its reasonable best efforts to solicit offers to
purchase the Notes from the Company upon the terms and conditions set forth in
the Prospectus (and any supplement thereto) and in the Procedures. The
appointment of the Agents hereunder is not exclusive and the Company may from
time to time offer Notes for sale otherwise than to or through an Agent;
provided, however, that so long as this Agreement is in effect the Company will
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not appoint any other agent for the purpose of soliciting purchases of the Notes
on a continuous basis. It is understood, however, that if from time to time the
Company is approached by a prospective agent offering to solicit a specific
purchase of Notes, the Company may engage such agent with respect to such
specific purchase, provided that (i) such agent is engaged on terms
substantially similar (including the same commission schedule) to the applicable
terms of this Agreement and (ii) the Agents are given notice of such purchase
promptly after it is agreed to. Each such Agent is acting in connection with the
Notes individually and not collectively or jointly.
The Company reserves the right, in its sole discretion, to
reject any offer to purchase Notes, in whole or in part. In addition, the
Company reserves the right, in its sole discretion, to instruct the Agents to
suspend at any time, for any period of time or permanently, the solicitation of
offers to purchase the Notes. Upon receipt of instructions from the Company, the
Agents will forthwith suspend solicitations of offers to purchase Notes from the
Company until such time as the Company has advised them that such solicitation
may be resumed.
The Company agrees to pay each Agent a commission on the
Closing Date with respect to each sale of Notes by the Company as a result of a
solicitation made by such Agent, in an amount equal to that percentage specified
in Schedule I hereto of the aggregate principal amount of the Notes sold by the
Company. Such commission shall be payable as specified in the Procedures.
Subject to the provisions of this Section 2 and to the
Procedures, offers for the purchase of Notes may be solicited by an Agent as
agent for the Company at such times and in such amounts as such Agent deems
advisable.
(b) Subject to the terms and conditions stated herein,
whenever the Company and any of you determines that the Company shall
sell Notes directly to any of you as principal, each such sale of Notes
shall be made in accordance with the terms of this Agreement and a
supplemental agreement relating to such sale. Each such supplemental
agreement (which may be either an oral or written agreement) is herein
referred to as a "Terms Agreement". Each Terms Agreement shall describe
the Notes to be purchased by the Purchaser pursuant thereto and shall
specify the aggregate principal amount of such Notes, the price to be
paid to the Company for such Notes, the maturity date of such Notes,
the rate at which interest will be paid on such Notes, the dates on
which interest will be paid on such Notes and the record date with
respect to each such payment of interest, the Closing Date for the
purchase of such Notes, the place of delivery of the Notes and payment
therefor, the method of payment and any requirements for the delivery
of opinions of counsel, certificates from the Company or its officers
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or a letter from the Company's independent public accountants as
described in Section 6(b). Any such Terms Agreement may also specify
the period of time referred to in Section 4(m). Any written Terms
Agreement may be in the form attached hereto as Exhibit B. The
Purchaser's commitment to purchase Notes shall be deemed to have been
made on the basis of the representations and warranties of the Company
herein contained and shall be subject to the terms and conditions
herein set forth.
Delivery of the certificates for Notes sold to the Purchaser
pursuant to a Terms Agreement shall be made not later than the Closing
Date agreed to in such Terms Agreement, against payment of funds to the
Company in the net amount due to the Company for such Notes by the
method and in the form set forth in the Procedures unless otherwise
agreed to between the Company and the Purchaser in such Terms
Agreement.
Unless otherwise agreed to between the Company and the
Purchaser in a Terms Agreement, any Note sold to a Purchaser (i) shall
be purchased by such Purchaser at a price equal to 100% of the
principal amount thereof less a percentage equal to the commission
applicable to an agency sale of a Note of identical maturity and (ii)
may be resold by such Purchaser at varying prices from time to time or,
if set forth in the applicable Terms Agreement and Pricing Supplement,
at a fixed public offering price. In connection with any resale of
Notes purchased, a Purchaser may use a selling or dealer group and may
reallow to any broker or dealer any portion of the discount or
commission payable pursuant hereto.
3. Offering and Sale of Notes. Each Agent and the Company
agree to perform the respective duties and obligations specifically provided to
be performed by them in the Procedures.
4. Agreements. The Company agrees with you that:
(a) Prior to the termination of the offering of the Notes, the
Company will not file any amendment of any Registration Statement or
supplement to the Prospectus (except for (i) periodic or current
reports filed under the Exchange Act, (ii) a Pricing Supplement or
(iii) a supplement relating to an offering of Debt Securities other
than the Notes) unless the Company has furnished each of you a copy for
your review prior to filing and given each of you a reasonable
opportunity to comment on any such proposed amendment or supplement.
Subject to the foregoing sentence, the Company will cause each
supplement to the Prospectus to be filed with the Commission pursuant
to the applicable paragraph of Rule 424 within the time period
prescribed. The Company will promptly advise each of you (i) when the
Prospectus, and any supplement thereto, shall have been filed with the
Commission pursuant to Rule 424, (ii) when, prior to the termination of
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the offering of the Notes, any amendment of any Registration Statement
shall have been filed or become effective, (iii) of any request by the
Commission for any amendment of any Registration Statement or
supplement to the Prospectus or for any additional information, (iv) of
the issuance by the Commission of any stop order suspending the
effectiveness of any Registration Statement or the institution or
threatening of any proceeding for that purpose and (v) of the receipt
by the Company of any notification with respect to the initiation or
threatening of any proceeding relating to the Notes in any
jurisdiction. The Company will use its best efforts to prevent the
issuance of any such stop order and, if issued, to obtain as soon as
possible the withdrawal thereof.
(b) Except as otherwise provided in subsection (n) of this
Section 4, if, at any time when a prospectus relating to the Notes is
required to be delivered under the Act, any event occurs as a result of
which the Prospectus as then supplemented would include any 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
shall be necessary to amend any Registration Statement or to supplement
the Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, the Company promptly will (i) notify each
of you to suspend solicitation of offers to purchase Notes (and, if so
notified by the Company, each of you shall forthwith suspend such
solicitation and cease using the Prospectus as then supplemented), (ii)
prepare and file with the Commission, subject to the first sentence of
paragraph (a) of this Section 4, an amendment or supplement which will
correct such statement or omission or effect such compliance and (iii)
supply any supplemented Prospectus to each of you in such quantities as
you may reasonably request; provided, however, that should any such
event relate solely to activities of any Agent, then such Agent shall
assume the expense of preparing and furnishing any such amendment or
supplement. If such amendment or supplement, and any documents,
certificates and opinions furnished to each of you pursuant to
paragraph (g) of this Section 4 in connection with the preparation of
filing of such amendment or supplement are satisfactory in all respects
to you, you will, upon the filing of such amendment or supplement with
the Commission and upon the effectiveness of an amendment to any
Registration Statement, if such an amendment is required, resume your
obligation to solicit offers to purchase Notes hereunder.
(c) During the term of this Agreement, the Company will timely
file all documents required to be filed with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act and will inform
each of you of such filing prior to or on the date of such filing. If
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so requested, the Company will furnish to any of you copies of such
documents. In addition, on the date on which the Company (or as soon as
practicable thereafter) makes any announcement to the general public
concerning earnings or concerning any other event which is required to
be described, or which the Company proposes to describe, in a document
filed pursuant to the Exchange Act, the Company will furnish to each of
you the information contained in such announcement. The Company will
notify each of you of any downgrading in the rating of the Notes or any
other debt securities of the Company, or any public announcement of
placement of the Notes or any other debt securities of the Company on
what is commonly termed a "watch list" for possible downgrading, by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act), promptly after the Company
learns of any such downgrading or public announcement.
(d) As soon as practicable, the Company will make generally
available to its security holders and to each of you an earnings
statement or statements of the Company and its subsidiaries which will
satisfy the provisions of Section 11(a) of the Act and Rule 158 under
the Act.
(e) The Company will furnish to each of you and your counsel,
without charge (except as otherwise provided herein), copies of each
Registration Statement (including exhibits thereto) and, so long as
delivery of a prospectus may be required by the Act, as many copies of
the Prospectus and any supplement thereto as you may reasonably
request.
(f) The Company will arrange for the determination of the
legality of the Notes for purchase by institutional investors.
(g) During the term of this Agreement, the Company shall
furnish to each of you (i) copies of all annual, quarterly and other
reports furnished to stockholders, (ii), as requested, copies of all
annual, quarterly and current reports (without exhibits but including
documents incorporated by reference therein) of the Company filed with
the Commission under the Exchange Act and (iii) such other information
concerning the Company as you may reasonably request from time to time.
(h) The Company shall, whether or not any sale of the Notes is
consummated, (i) pay all expenses incident to the performance of its
obligations under this Agreement, including the fees and disbursements
of its accountants and counsel, the cost of printing or other
production and delivery of Registration Statement No. 333-18965, the
Prospectus, all amendments thereof and supplements thereto, the
Indenture, this Agreement and all other documents relating to the
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offering, the cost of preparing, printing, packaging and delivering the
Notes, the fees and disbursements, including fees of counsel, incurred
in compliance with Section 4(f), the fees and disbursements of the
Indenture Trustee and the fees of any ratings agency that rates the
Notes, (ii) reimburse each of you on a monthly basis for all reasonable
out-of-pocket expenses (including, but not limited to, advertising
expenses), in the aggregate not to exceed two thousand five hundred
dollars per Agent, incurred by you in connection with this Agreement
and (iii) pay the reasonable fees and expenses of your counsel incurred
in connection with this Agreement.
(i) Each acceptance by the Company of an offer to purchase
Notes will be deemed to be a reconfirmation to you of the
representations and warranties of the Company in Section 1 (except that
such representations and warranties shall be deemed to relate solely to
each Registration Statement as then amended and to the Prospectus as
then amended and supplemented to relate to such Notes).
(j) Except as otherwise provided in subsection (n) of this
Section 4, each time that any Registration Statement or the Prospectus
is amended or supplemented (other than by (i) an amendment or
supplement relating to any offering of Debt Securities other than the
Notes or (ii) a Pricing Supplement) the Company will deliver or cause
to be delivered promptly to each of you a certificate of the Company,
signed by any of the Chairman of the Board, the President, the Chief
Executive Officer, any Vice President having responsibilities for
financial matters, the Chief Accounting Officer or the Treasurer of the
Company, dated the date of the effectiveness of such amendment or the
date of the filing of such supplement, in form reasonably satisfactory
to you, of the same tenor as the certificate referred to in Section
5(d) but modified to relate to the last day of the fiscal quarter for
which financial statements of the Company were last filed with the
Commission and to such Registration Statement and the Prospectus as
amended and supplemented to the time of the effectiveness of such
amendment or the filing of such supplement.
(k) Except as otherwise provided in subsection (n) of this
Section 4, each time that any Registration Statement or the Prospectus
is amended or supplemented (other than by (i) an amendment or
supplement relating to any offering of Debt Securities other than the
Notes or (ii) a Pricing Supplement), the Company shall furnish or cause
to be furnished promptly to each of you a written opinion of Xxxx X.
Xxxxx, Xx., Esq., counsel for the Company, satisfactory to each of you,
dated the date of the effectiveness of such amendment or the date of
the filing of such supplement, in form satisfactory to each of you, of
the same tenor as the opinion referred to in Section 5(b), but modified
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to relte to such Registration Statement and the Prospectus as amended
and supplemented to the time of the effectiveness of such amendment or
the filing of such supplement or, in lieu of such opinion, such counsel
may furnish each of you with a letter to the effect that you may rely
on such counsel's last opinion to the same extent as though it were
dated the date of such letter authorizing reliance (except that
statements in such last opinion will be deemed to relate to such
Registration Statement and the Prospectus as amended and supplemented
to the time of the effectiveness of such amendment or the filing of
such supplement).
(l) Except as otherwise provided in subsection (n) of this
Section 4, each time that any Registration Statement or the Prospectus
is amended or supplemented (other than by (i) an amendment or
supplement relating to any offering of Debt Securities other than the
Notes or (ii) a Pricing Supplement) to set forth amended or
supplemental financial information, the Company shall cause its
independent public accountants promptly to furnish each of you a
letter, dated the date of the effectiveness of such amendment or the
date of the filing of such supplement, in form satisfactory to each of
you, of the same tenor as the letter referred to in Section 5(e) with
such changes as may be necessary to reflect the amended and
supplemental financial information included or incorporated by
reference in such Registration Statement and the Prospectus, as amended
or supplemented to the date of such letter.
(m) During the period, if any, specified in any Terms
Agreement, the Company shall not, without the prior consent of the
Purchaser thereunder, issue or announce the proposed issuance of any of
its debt securities, including the Notes, with maturities or other
terms substantially similar to the Notes being purchased pursuant to
such Terms Agreement.
(n) The Company shall not be required to comply with the
provisions of subsections (b), (j), (k) and (l) of this Section 4
during any period (which may occur from time to time during the term of
this Agreement) for which the Company has instructed the Agents to
suspend the solicitation of offers to purchase Notes; provided that,
during any such period, any Purchaser does not then hold any Notes
purchased pursuant to a Terms Agreement. The Company shall be required
to comply with the provisions of subsections (b), (j), (k) and (l) of
this Section 4 prior to instructing the Agents to resume the
solicitation of offers to purchase Notes or prior to entering into a
Terms Agreement.
5. Conditions to the Obligations of the Agents. The
obligations of each Agent to solicit offers to purchase the Notes shall be
subject to (i) the accuracy of the representations and warranties on the part of
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the Company contained herein as of the Execution Time, on the Effective Date and
when any supplement to the Prospectus is filed with the Commission, (ii) the
accuracy of the statements of the Company made in any certificates pursuant to
the provisions hereof, (iii) the performance by the Company of its obligations
hereunder and (iv) the following additional conditions:
(a) If filing of the Prospectus, or any supplement thereto, is
required pursuant to Rule 424, the Prospectus, and any such supplement,
shall have been filed in the manner and within the time period required
by Rule 424; and no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for
that purpose shall have been instituted or threatened.
(b) The Company shall have furnished to each Agent the opinion
of Xxxx X. Xxxxx, Xx., Esq., counsel for the Company, dated the
Execution Time, to the effect that:
(i) Each of the Company and the Subsidiaries has been
duly incorporated and is validly existing as a corporation in
good standing under the laws of the jurisdiction of its
incorporation, with power and authority (corporate and other)
to own its properties and conduct its business as described in
the Prospectus, as amended or supplemented, and is duly
qualified to do business in each jurisdiction in which it owns
or leases real property or in which the conduct of its
business requires such qualification except where the failure
to be so qualified, considering all such cases in the
aggregate, does not involve a material risk to the business,
properties, financial position or results of operations of the
Company and the Subsidiaries taken as a whole; and all of the
outstanding shares of capital stock of each of the
Subsidiaries have been duly authorized and validly issued, are
fully paid and nonassessable and are owned beneficially by the
Company subject to no security interest, other encumbrance, or
adverse claim.
(ii) To the best of such counsel's knowledge and other than
as set forth or contemplated in the Prospectus, there are no
legal or governmental proceedings pending to which the Company
or any of its subsidiaries is a party or of which any property
of the Company or any of its subsidiaries is the subject
which, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a
material adverse effect on the consolidated financial
position, stockholders' equity or results of operations of the
Company and its subsidiaries; and, to the best of such
counsel's knowledge, no such proceedings are threatened or
-13-
contemplated by governmental authorities or threatened
by others.
(iii) This Agreement has been duly authorized,
executed and delivered by the Company.
(iv) The creation, issuance and sale of the Notes has
been duly and validly authorized and, when issued within the
limitations set forth in the orders from the Public Service
Commission of the District of Columbia and the State
Corporation Commission of Virginia referred to in paragraph
(vii) below and executed and authenticated in accordance with
the provisions of the Indenture and delivered to and paid for
by the purchasers thereof in accordance with this Agreement,
the Notes will constitute valid and legally binding
obligations of the Company entitled to the benefit provided by
the Indenture; and the Notes and the Indenture conform to the
descriptions thereof in the Prospectus.
(v) The Indenture has been duly authorized, executed and
delivered by the parties thereto and constitutes a valid and
legally binding instrument, enforceable in accordance with its
terms, subject as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability
relating to or affecting creditor's rights and to general
equity principles; and the Indenture has been duly qualified
under the Trust Indenture Act.
(vi) The issue and sale of the Notes and the compliance by
the Company with all of the provisions of the Notes, the
Indenture and this Agreement and the consummation of the
transactions therein and herein contemplated will not conflict
with or result in a breach of any of the terms or provisions
of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument
known to such counsel to which the Company is a party or by
which the Company is bound or to which any of the property or
assets of the Company is subject, nor will such action result
in any violation of the provisions of the Company's Charter,
as amended, or Bylaws or any statute or any order, rule or
regulation known to such counsel of any court or governmental
agency or body having jurisdiction over the Company or any of
its properties.
(vii) No consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body having jurisdiction is required
for the issue and sale of the Notes or the consummation by the
-14-
Company of the other transactions contemplated by this
Agreement or the Indenture, except such as have been obtained
under the Act and the Trust Indenture Act, and except for
filings with and the orders from the Public Service Commission
of the District of Columbia and the State Corporation
Commission of Virginia authorizing the issuance and sale by
the Company of the Notes subject to certain conditions set
forth therein, both of which orders have been obtained and are
in full force and effect.
(viii) Each Registration Statement and the Prospectus
(except as to the financial statements and other financial
data contained or incorporated by reference therein as to
which such counsel need express no opinion) comply as to form
in all material respects with all applicable requirements of
the Act, the Exchange Act and the applicable instructions,
rules and regulations of the Commission thereunder; each
Registration Statement has become effective under the Act,
and, to the best knowledge of such counsel, no proceedings for
a stop order with respect thereto have been instituted or are
pending or threatened under Section 8 of the Act; and such
counsel has no reason to believe that each Registration
Statement, at its Effective Date, contained an untrue
statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus, as
of the date of such opinion, includes an untrue statement of a
material fact or omits to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(ix) The Company is exempt by order from the provisions
of the Public Utility Holding Company Act of 1935 (except
Sections 11(b)(2), 11(d) and 11(e) thereof) which would
otherwise require it to register thereunder, and the Company's
gas distribution activities are exempt from the Natural Gas
Act.
(x) The Public Service Commission of the District of
Columbia and the State Corporation Commission of Virginia have
issued appropriate orders with respect to the issuance and
sale of the Notes in accordance with this Agreement; such
orders are still in full force and effect; the issuance and
sale of the Notes in accordance with this Agreement conform
with the terms of such orders.
(c) Each Agent shall have received from Winthrop, Stimson,
Xxxxxx & Xxxxxxx, counsel for the Agents, an opinion, dated the
Execution Time, with respect to the issuance and sale of the Notes, the
-15-
Indenture, the Registration Statements, the Prospectus (together with
any supplement thereto) and other related matters as the Agents may
reasonably require, and the Company shall have furnished to such
counsel such documents as they reasonably request for the purpose of
enabling them to pass upon such matters.
(d) The Company shall have furnished to each Agent a
certificate of the Company, signed by any of the Chairman of the Board,
the President, the Chief Executive Officer, any Vice President having
responsibilities for financial matters, the Chief Accounting Officer or
the Treasurer of the Company, dated the Execution Time, to the effect
that the signer of such certificate has carefully examined each
Registration Statement, the Prospectus, any supplement to the
Prospectus and this Agreement and that:
(i) The representations and warranties of the Company
in this Agreement are true and correct in all material
respects on and as of the date of such certificate with the
same effect as if made at the Execution Time and the Company
has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied as a
condition to the obligation of the Agents to solicit offers to
purchase the Notes.
(ii) No stop order suspending the effectiveness of any
Registration Statement has been issued and no proceedings for
that purpose have been instituted or, to the Company's
knowledge, threatened.
(iii) (1) Since the date of the latest audited financial
statements included or incorporated by reference in
Registration Statement No. 333-18965 and the Prospectus, there
has not been any material loss or interference with the
Company's business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or
decree, otherwise than as set forth or contemplated in
Registration Statement No. 333-18965 and the Prospectus and
(2) since the respective dates as of which information is
given in Registration Statement No. 333- 18965 and the
Prospectus, there has not been any change in the capital stock
(other than pursuant to the Company's Dividend Reinvestment
and Common Stock Purchase Plan, any other stock purchase,
savings, bonus, incentive, or similar plan or conversions of
convertible securities into common stock or long-term debt
(other than any redemptions or purchases of its First Mortgage
Bonds or Medium Term Notes, normal amortization of debt
premium and discount, bank or finance company borrowings and
repayments or additional issuances or repurchases of
-16-
commercial paper) of the Company and its subsidiaries taken as
a whole or any change, or any development involving a
prospective change, in or affecting the general affairs,
management, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries
taken as a whole, otherwise than as set forth or contemplated
in Registration Statement No. 333-18965 and the Prospectus.
(e) At the Execution Time, Xxxxxx Xxxxxxxx LLP shall have
furnished to each Agent a letter, dated as of the Execution Time, in
form and substance satisfactory to the Agents, confirming that they are
independent certified public accountants within the meaning of the Act
and the applicable published rules and regulations thereunder and
stating in effect that:
(i) In their opinion the audited consolidated
financial statements and related supplemental schedules
included or incorporated by reference in Registration
Statement No. 333-18965 and the Prospectus comply in form in
all material respects with the applicable accounting
requirements of the Act and the Exchange Act and the published
rules and regulations thereunder.
(ii) On the basis of a reading of the latest unaudited
financial statements made available by the Company and its
subsidiaries; a reading of the minutes of the meetings of the
Board of Directors of the Company; and inquiries of certain
officials of the Company who have responsibility for financial
and accounting matters of the Company and its subsidiaries,
nothing came to their attention which caused them to believe
that:
(1) any unaudited condensed consolidated
financial statements included or incorporated by
reference in Registration Statement No. 333-18965 and
the Prospectus do not comply in form in all material
respects with the applicable accounting requirements
and with the published rules and regulations of the
Commission with respect to financial statements
included or incorporated in Quarterly Reports on Form
10-Q under the Exchange Act; or that said unaudited
condensed consolidated financial statements are not
in conformity with generally accepted accounting
principles applied on a basis substantially
consistent with that of the audited financial
statements included or incorporated by reference in
Registration Statement No. 333-18965 and the
Prospectus;
(2) with respect to the period subsequent
to the date of the most recent financial statements
-17-
(other than any capsule information) included or
incorporated by reference in Registration Statement
No. 333-18965 and the Prospectus (the "Latest Date of
Financials"), (A) there was any increase in long-term
debt or decrease in net assets or (B) there were any
changes, at a specified date not more than five days
prior to the date of the letter, in the common stock
(other than pursuant to the Company's Dividend
Reinvestment and Common Stock Purchase Plan, any
other stock purchase, savings, bonus, incentive, or
similar plan, or conversions of convertible
securities), non-redeemable serial preferred stock
(other than conversions of convertible preferred
stock) or long-term debt (other than any redemptions
or purchases of First Mortgage Bonds, normal
amortization of debt premium and discount,
conversions of convertible securities, bank or
finance company borrowings and repayments or
additional issuances or repurchases of commercial
paper) of the Company and its subsidiaries as
compared with the amounts shown on the most recent
consolidated balance sheet included or incorporated
by reference in Registration Statement No. 333-18965
and the Prospectus; except in all instances for
changes or decreases that Registration Statement No.
333-18965 and the Prospectus disclose have occurred
or may occur and except as set forth in such letter;
or
(3) with respect to the period subsequent to
the Latest Date of Financials to the date of the most
recent available interim financial statements, there
were any material decreases in consolidated operating
revenues or net income of the Company and its
subsidiaries, as compared with the comparable period
of the preceding year, except in all instances for
decreases that Registration Statement No. 333-18965
and the Prospectus disclose have occurred or may
occur and except as set forth in such letter; or
(4) the amounts included in any unaudited
"capsule" information included or incorporated by
reference in Registration Statement No. 333-18965 and
the Prospectus do not agree with the amounts set
forth in the unaudited financial statements for the
same periods or were not determined on a basis
substantially consistent with that of the
corresponding amounts in the audited financial
statements included or incorporated by reference in
Registration Statement No. 333-18965 and the
Prospectus.
-18-
(iii) They have compared certain dollar amounts (or
percentages derived from such dollar amounts) and other
financial information specified by the Agents (A) which appear
in the Prospectus under the caption "Ratio of Earnings to
Fixed Charges", (B) which appear or are incorporated by
reference in the Company's Annual Report on Form 10-K
incorporated by reference in Registration Statement No.
333-18965 and the Prospectus under the caption "Management's
Discussion and Analysis of Financial Condition and Results of
Operations" or (C) which appear in any of the Company's
Quarterly Reports on Form 10-Q incorporated by reference in
Registration Statement No. 333-18965 and the Prospectus under
the captions "Management's Discussion and Analysis of
Financial Condition and Results of Operations" and "Ratio of
Earnings to Fixed Charges" (in each case to the extent that
such dollar amounts, percentages and other financial
information are derived from the general accounting records of
the Company subject to the internal controls of the Company's
accounting system or are derived directly from such records by
analysis or computation) with the results obtained from
inquiries, a reading of such general accounting records and
other procedures specified in such letter and have found such
dollar amounts, percentages and other financial information to
be in agreement with such results. All financial statements
included in material incorporated by reference in the
Prospectus shall be deemed included in the Prospectus for
purposes of this subsection.
References to the Prospectus in this paragraph (e) include any
supplement thereto at the date of the letter.
(f) Prior to the Execution Time, the Company shall have
furnished to each Agent such further information, documents,
certificates and opinions of counsel as the Agents may reasonably
request.
If any of the conditions specified in this Section 5 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to such Agents and counsel for the Agents,
this Agreement and all obligations of any Agent hereunder may be canceled at any
time by the Agents. Notice of such cancellation shall be given to the Company in
writing or by telephone or telegraph confirmed in writing.
The documents required to be delivered by this Section 5 at
the Execution Time shall be delivered at the office of Winthrop, Stimson, Xxxxxx
& Xxxxxxx, Xxx Xxxxxxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
-19-
6. Conditions to the Obligations of the Purchaser. The
obligations of the Purchaser to purchase any Notes will be subject to the
accuracy of the representations and warranties on the part of the Company herein
as of the date of any related Terms Agreement and as of the Closing Date for
such Notes, to the performance and observance by the Company of all covenants
and agreements herein contained on its part to be performed and observed and to
the following additional conditions precedent:
(a) No stop order suspending the effectiveness of either
Registration Statement shall have been issued and no proceedings for
the purpose shall have been instituted or threatened.
(b) If specified by any related Terms Agreement and except to
the extent modified by such Terms Agreement, the Purchaser shall have
received, appropriately updated, (i) a certificate of the Company,
dated as of the Closing Date, to the effect set forth in Section 5(d),
(ii) the opinion of Xxxx X. Xxxxx, Xx., Esq., counsel for the Company,
dated as of the Closing Date, substantially to the effect set forth in
Section 5(b), (iii) the opinion of Winthrop, Stimson, Xxxxxx & Xxxxxxx,
counsel for the Purchaser, dated as of the Closing Date, substantially
to the effect set forth in Section 5(c) and (iv) the letter of Xxxxxx
Xxxxxxxx LLP, independent public accountants for the Company, dated as
of the Closing Date, substantially to the effect set forth in Section
5(e); provided, however, that references to each Registration Statement
and the Prospectus in such certificate, opinions and letter shall be to
each Registration Statement and the Prospectus as then amended and
supplemented.
(c) Prior to the Closing Date, the Company shall have
furnished to the Purchaser such further information, certificates and
documents as the Purchaser may reasonably request.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in this
Agreement and any Terms Agreement, or if any of the opinions and certificates
mentioned above or elsewhere in this Agreement or such Terms Agreement shall not
be in all material respects reasonably satisfactory in form and substance to the
Purchaser and its counsel, such Terms Agreement and all obligations of the
Purchaser thereunder and with respect to the Notes subject thereto may be
canceled at, or any time prior to, the respective Closing Date by the Purchaser.
Notice of such cancellation shall be given to the Company in writing or by
telephone or telegraph confirmed in writing.
7. Right of Person Who Agreed to Purchase to Refuse to
Purchase. The Company agrees that any person who has agreed to purchase and pay
-20-
for any Note, including a Purchaser and any person who purchases pursuant to a
solicitation by any of the Agents, shall have the right to refuse to purchase
such Note if, at the Closing Date therefor, either (a) any condition set forth
in Section 5 or 6, as applicable, shall not be satisfied or (b) subsequent to
the agreement to purchase such Note, there shall have occurred (i) any change in
or affecting the business, business prospects or properties of the Company and
its subsidiaries, considered as one enterprise, the effect of which, in the
reasonable judgment of such person, has a material adverse effect on the
investment quality of such Note or (ii) any event described in paragraphs (ii),
(iii), (iv) or (v) of Section 9(b).
8. Indemnification and Contribution. (a) The Company will
indemnify and hold harmless each Agent against any losses, claims, damages or
liabilities, joint or several, to which such Agent may become subject, under the
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue statement
or alleged untrue statement of a material fact contained in any preliminary
prospectus, any preliminary prospectus supplement, any Registration Statement,
the Prospectus and any other prospectus relating to the Notes, or any amendment
or supplement thereto, or arise out of or are based upon 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, and will reimburse each
Agent for any legal or other expenses reasonably incurred by such Agent in
connection with investigating or defending any such action or claim; provided,
however, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in any preliminary prospectus, any preliminary prospectus supplement, any
Registration Statement, the Prospectus and any other prospectus relating to the
Notes or any such amendment or supplement in reliance upon and in conformity
with written information furnished to the Company by any Agent expressly for use
in the Prospectus.
(b) Each Agent will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any preliminary prospectus, any preliminary prospectus supplement,
any Registration Statement, the Prospectus and any other prospectus relating to
the Notes, or any amendment or supplement thereto, or arise out of or are based
upon 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,
in each case to the extent, but only to the extent, that such untrue statement
-21-
or alleged untrue statement or omission or alleged omission was made in any
preliminary prospectus, any preliminary prospectus supplement, any Registration
Statement, the Prospectus and any other prospectus relating to the Notes, or any
amendment or supplement thereto, in reliance upon and in conformity with written
information furnished to the Company by such Agent expressly for use therein;
and will reimburse the Company for any legal or other expenses reasonably
incurred by the Company in connection with investigating or defending any such
action or claim.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. An indemnifying party shall not settle,
compromise or consent to the entry of any judgment in or otherwise seek to
terminate any pending or threatened action, claim, suit or proceeding in which
any indemnified party is or could be a party and as to which indemnification or
contribution could have been sought by such indemnified party under this Section
8 (whether or not such indemnified party is a party thereto), unless such
indemnified party has given its prior written consent or the settlement,
compromise, consent or termination includes an express unconditional release of
such indemnified party, satisfactory in form and substance to such indemnified
party, from all losses, claims, damages or liabilities arising out of such
action, claim, suit or proceeding. Any losses, claims, damages or liabilities
for which an indemnified party is entitled to indemnification or contribution
under this Section 8 shall be paid by the indemnifying party to the indemnified
party as such losses, claims, damages or liabilities are incurred.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
-22-
subsection (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 benefits received by the Company on the one hand and the Agent or
Agents on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as other equitable considerations, including relative fault.
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 relates to information
supplied by the Company on the one hand or such Agent or Agents 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 the Agents
agree that it would not be just and equitable if contribution pursuant to this
subsection (d) were determined by pro rata allocation (even if the Agents were
treated as one entity for such purpose) 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.
Notwithstanding the provisions of this subsection (d), no Agent shall be
required to contribute any amount in excess of the amount by which the total
price at which the Notes of the Company purchased by or through it and
distributed to the public were offered to the public exceeds the amount of any
damages that such Agent has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The obligations of each of the Agents in this
subsection (d) to contribute are several in proportion to the respective
purchases made by or through it to which such loss, claim, damage or liability
(or action in respect thereof) relates and are not joint.
(e) The obligations of the Company under this Section 8 shall
be in addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any who controls
any Agent within the meaning of the Act; and the obligations of the Agents under
this Section 8 shall be in addition to any liability which the Agents may
otherwise have and shall extend, upon the same terms and conditions, to each
-23-
officer and director of the Company and to each person, if any, who controls the
Company within the meaning of the Act.
9. Termination. (a) This Agreement will continue in effect
until terminated as provided in this Section 9. This Agreement may be terminated
by either the Company as to any of you or any of you insofar as this Agreement
relates to such of you, giving written notice of such termination to such of you
or the Company, as the case may be. This Agreement shall so terminate at the
close of business on the first business day following the receipt of such notice
by the party to whom such notice is given. In the event of such termination, no
party shall have any liability to the other party hereto, except as provided in
the third paragraph of Section 2(a), Section 4(h), Section 8 and Section 10.
(b) Each Terms Agreement shall be subject to termination in
the absolute discretion of the Purchaser, by notice given to the Company prior
to delivery of any payment for Notes to be purchased thereunder, if prior to
such time (i) the Purchaser shall exercise its right to refuse to purchase the
Notes which are the subject of such Terms Agreement in accordance with the
provisions of Section 7, or (ii) there shall have occurred any outbreak or
escalation of hostilities or other national or international calamity or crisis,
the effect of which shall be such as to make it, in the reasonable judgment of
the Purchaser, impractical to market the Notes or enforce contracts for the sale
of the Notes, or (iii) trading in any securities of the Company shall have been
suspended by the Commission or a national securities exchange, or if trading
generally on either the American Stock Exchange or the New York Stock Exchange
shall have been suspended, or minimum or maximum prices for trading shall have
been fixed, or maximum ranges for prices for securities shall have been
required, by either of said exchanges or by order of the Commission or any other
governmental authority, or if a banking moratorium shall have been declared by
either Federal or New York authorities, or (iv) if the rating assigned by any
"nationally recognized statistical rating organization" (as defined for purposes
of Rule 436(g) under the Act) to the Notes or any other debt securities of the
Company as of the date of the applicable Terms Agreement shall have been lowered
since that date or if any such rating agency shall have publicly announced that
it has placed the Notes or any other debt securities of the Company on what is
commonly termed a "watch list" for possible downgrading, or (v) the subject
matter of any amendment or supplement to any Registration Statement or the
Prospectus prepared and issued by the Company, or the exceptions set forth in
any letter furnished by Xxxxxx Xxxxxxxx LLP furnished pursuant to Section 5(e)
hereof, shall have made it, in the judgment of the Purchaser, impracticable or
inadvisable to market the Notes or enforce contracts for the sale of the Notes.
10. Representations and Indemnities to Survive. The
respective agreements, representations, warranties, indemnities and other
-24-
statements of the Company or its officers and of you set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation made by or on behalf of you or the Company or any of the
officers, directors or controlling persons referred to in Section 8 hereof, and
will survive delivery of and payment for the Notes. The provisions of the third
paragraph of Section 2(a) and Sections 4(h) and 8 hereof shall survive the
termination or cancellation of this Agreement.
11. Notices. All communications hereunder will be in writing
and effective only on receipt, and, if sent to any of you, will be mailed,
delivered or telegraphed and confirmed to such of you, at the address specified
in Schedule I hereto; or, if sent to the Company, will be mailed, delivered or
telegraphed and confirmed to it at 0000 X Xxxxxx, X.X., Xxxxxxxxxx, X.X.
00000, Attention: Secretary.
12. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 8 hereof,
and no other person will have any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York.
14. Counterparts. This Agreement may be executed in
counterparts, which together shall constitute one and the same instrument. If
signed in counterparts, this Agreement shall not become effective unless at
least one counterpart hereof shall have been executed and delivered on behalf of
each party hereto.
-25-
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and you.
Very truly yours,
Washington Gas Light Company
By:/s/ Washington Gas Light Company
--------------------------------
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date hereof.
Salomon Brothers Inc
By:/s/ Salomon Brothers Inc
--------------------------------------------------
Title:
X.X. Xxxx & Co.
By:/s/ X.X. Xxxx & Co.
--------------------------------------------------
Title:
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
By:Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
--------------------------------------------------
Title:
PaineWebber Incorporated
By:/s/ PaineWebber Incorporated
--------------------------------------------------
Title:
-26-
SCHEDULE I
Commissions:
The Company agrees to pay each Agent a commission equal to the
following percentage of the principal amount of each Note sold by such Agent:
Term Commission Rate
From 1 year to less than 18 months .150%
From 18 months to less than 2 years .200%
From 2 years to less than 3 years .250%
From 3 years to less than 4 years .350%
From 4 years to less than 5 years .450%
From 5 years to less than 6 years .500%
From 6 years to less than 7 years .550%
From 7 years to less than 10 years .600%
From 10 years to less than 15 years .625%
From 15 years to less than 20 years .675%
From 20 years up to and including 30 years .750%
Address for Notice to You:
Notices to Salomon Brothers Inc shall be directed to it at Seven
Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention of Medium Term Note
Group, telecopy number 000-000-0000.
Notices to X.X. Xxxx & Co. shall be directed to it at 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention of Xxxx X. Xxxxxx, telecopy number
000-000-0000.
Notices to Xxxxxxx Xxxxx & Co. shall be directed to it at Xxxxx
Xxxxx, Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention of
Medium-Term Note Production Management, telecopy number 000-000-0000.
Notices to PaineWebber Incorporated shall be directed to it at 1285
Avenue of the Americas, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention of
Corporate Bond Department, telecopy number 000-000-0000.
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