$____0,000,000
VIRGINIA ELECTRIC AND POWER COMPANY
200__ Series __ _____% Senior Notes, Due __________
UNDERWRITING AGREEMENT
__________
____________________
as Representative for the Underwriters
listed in Schedule I hereto
____________________
____________________
____________________
Ladies and Gentlemen:
The undersigned, Virginia Electric and Power Company (the "Company"),
hereby confirms its agreement with the several Underwriters named in Schedule I
hereto (the "Agreement") with respect to the issuance and sale to the several
Underwriters of certain of the Company's Senior Notes (the "Senior Notes")
specified in Schedule II hereto, and the public offering thereof by the several
Underwriters, upon the terms specified in Schedule II hereto.
1. Underwriters and Representatives. The term "Underwriters" as used
herein shall be deemed to mean the several persons, firms or corporations
(including the Representatives hereinafter mentioned) named in Schedule I
hereto, and the term "Representatives" as used herein shall be deemed to mean
the Representatives to whom this Agreement is addressed, who by signing this
Agreement represent that they have been authorized by the other Underwriters to
execute this Agreement on their behalf and to act for them in the manner herein
provided. If there shall be only one person, firm or corporation named as an
addressee above, the term "Representatives" as used herein shall mean that
person, firm or corporation. If there shall be only one person, firm or
corporation named in Schedule I hereto, the term "Underwriters" as used herein
shall mean that person, firm or corporation. All obligations of the Underwriters
hereunder are several and not joint. Unless otherwise stated, any action under
or in respect of this Agreement taken by the Representatives will be binding
upon all the Underwriters.
2. Description of the Senior Notes. Schedule II specifies the aggregate
principal amount of the Senior Notes, the initial public offering price of the
Senior Notes, the purchase price to be paid by the Underwriters, and any
concession from the initial public offering price to be allowed to dealers or
brokers, and sets forth the date, time and manner of delivery of the Senior
Notes and payment therefor. Schedule II also specifies (to the extent not set
forth in Sections 4 and 5 herein, the Registration Statement and Prospectus
referred to below) the terms and provisions for the purchase of such Senior
Notes. The Senior Notes will be issued under the Company's Senior
Indenture dated as of June 1, 1998 between the Company and JPMorgan Chase Bank
(formerly known as The Chase Manhattan Bank), as Trustee (the "Trustee"), as
previously supplemented and as further supplemented by a _____ Supplemental
Indenture dated as of __________ (collectively, the "Indenture").
3. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, the Underwriters that:
(a) A registration statement, No. __________ on Form S-3 for
the registration of the Senior Notes under the Securities Act of 1933,
as amended (the "Securities Act"), heretofore filed with the Securities
and Exchange Commission (the "Commission") has become effective. The
registration statement, including all exhibits thereto, as amended
through the date hereof, is hereinafter referred to as the
"Registration Statement"; the prospectus dated __________, relating to
the Senior Debt Securities and other securities included in the
Registration Statement, which prospectus is now proposed to be
supplemented by a prospectus supplement relating to the Senior Notes to
be filed with the Commission under the Securities Act, as completed and
as so supplemented, is hereinafter referred to as the "Prospectus". As
used herein, the terms "Registration Statement" and "Prospectus"
include all documents (including any Current Report on Form 8-K)
incorporated therein by reference, and shall include any documents
(including any Current Report on Form 8-K) filed after the date of such
Registration Statement or Prospectus and incorporated therein by
reference from the date of filing of such incorporated documents
(collectively, "the Incorporated Documents").
(b) No order suspending the effectiveness of the Registration
Statement or otherwise preventing or suspending the use of the
Prospectus has been issued by the Commission and is in effect and no
proceedings for that purpose are pending before or, to the knowledge of
the Company, threatened by the Commission. The Registration Statement
and the Prospectus comply in all material respects with the provisions
of the Securities Act, the Securities Exchange Act of 1934, as amended
(the "Securities Exchange Act"), the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), and the rules, regulations and
releases of the Commission (the "Rules and Regulations") and, neither
the Registration Statement on the date it was declared effective (the
"Effective Date") nor the Prospectus on the date hereof contained or
contains an untrue statement of a material fact or omitted or omits to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading, and, on the Closing Date
(as defined below), the Registration Statement and the Prospectus
(including any amendments and supplements thereto) will conform in all
respects to the requirements of the Securities Act, the Trust Indenture
Act and the Rules and Regulations, and neither of such documents will
include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, that the foregoing
representations and warranties in this Section 3(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 through the Representatives for use in the Registration
Statement or Prospectus or the part of the Registration Statement which
constitutes the Trustee's
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Statement of Eligibility under the Trust Indenture Act; and provided,
further, that the foregoing representations and warranties are given on
the basis that any statement contained in an Incorporated Document
shall be deemed not to be contained in the Registration Statement or
Prospectus if the statement has been modified or superseded by any
statement in a subsequently filed Incorporated Document or in the
Registration Statement or Prospectus or in any amendment or supplement
thereto.
(c) Except as reflected in, or contemplated by, the
Registration Statement and Prospectus (exclusive of any amendments or
supplements after the date hereof), since the respective most recent
dates as of which information is given in the Registration Statement
and Prospectus (exclusive of any amendments or supplements after the
date hereof), there has not been any material adverse change or event
which would result in a material adverse effect on the condition of the
Company and its subsidiaries taken as a whole, financial or otherwise
(a Material Adverse Effect). The Company and its subsidiaries taken as
a whole have no material contingent financial obligation which is not
disclosed in the Registration Statement and the Prospectus.
(d) Deloitte & Touche LLP who have certified certain of the
Company's financial statements filed with the Commission and
incorporated by reference in the Registration Statement are independent
public accountants as required by the Securities Act and the rules and
regulations relating to the Securities Act.
(e) There are no Significant Subsidiaries of the Company as
such term is defined in Rule 1-02 of Regulation S-X.
(f) The execution, delivery and performance of this Agreement,
the Indenture and the Senior Notes and the consummation of the
transactions contemplated in this Agreement and in the Registration
Statement (including the issuance and sale of the Senior Notes and the
use of the proceeds from the sale of the Senior Notes as described in
the Prospectus under the caption "Use of Proceeds") and compliance by
the Company with its obligations under this Agreement, the Indenture
and the Senior Notes do not and will not, whether with or without the
giving of notice or lapse of time or both, conflict with or constitute
a breach of, or default under or result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of the
Company or any subsidiary pursuant to any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or any
other agreement or instrument, to which the Company or any subsidiary
is a party or by which it or any of them may be bound, or to which any
of the property or assets of the Company or any subsidiary is subject
(except for such conflicts, breaches or defaults or liens, charges or
encumbrances that would not have a Material Adverse Effect and except
that any assets acquired as described in the Prospectus under "Use of
Proceeds" will become subject to the lien of the Company's first and
refinancing mortgage bonds indenture), nor will such action result in
any violation of the provisions of the charter or bylaws of the Company
or any subsidiary, or any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over
the Company or any subsidiary or any of their respective properties,
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assets or operations, and the Company has full power and authority to
authorize, issue and sell the Senior Notes as contemplated by this
Agreement.
(g) The Company is not, and, after giving effect to the
offering and sale of the Senior Notes and the application of the
proceeds thereof as described in the Prospectus, will not be, an
"investment company" or a company "controlled" by an "investment
company" which is required to be registered under the Investment
Company Act of 1940, as amended.
4. Purchase and Public Offering. On the basis of the
representations and warranties herein contained, but subject to the terms and
conditions in this Agreement set forth, the Company agrees to sell to each of
the Underwriters, and each Underwriter agrees, severally and not jointly, to
purchase from the Company, at the price, place and time hereinafter specified,
the principal amount of the Senior Notes set forth opposite the name of such
Underwriter in Schedule I hereto. The Underwriters agree to make a public
offering of their respective Senior Notes specified in Schedule I hereto at the
initial public offering price specified in Schedule II hereto. It is understood
that after such initial offering the several Underwriters reserve the right to
vary the offering price and further reserve the right to withdraw, cancel or
modify any subsequent offering without notice.
5. Time and Place of Closing. Delivery of the certificate(s) for
the Senior Notes and payment therefor by the Representatives for the accounts of
the several Underwriters shall be made at the time, place and date specified in
Schedule II or such other time, place and date as the Representatives and the
Company may agree upon in writing, and subject to the provisions of Section 10
hereof. The hour and date of such delivery and payment are herein called the
"Closing Date". Unless otherwise specified in Section 4 and/or Schedule II
hereto, payment for the Senior Notes shall be made by wire transfer of
immediately available funds to the Company's account on the Closing Date against
delivery of the Senior Notes, in fully registered form, registered in the name
of Cede & Co., as nominee for The Depository Trust Company. The certificate(s)
for the Senior Notes will be made available at the location specified on
Schedule II for examination by the Representatives not later than 12:00 noon,
New York time, on the last business day prior to the Closing Date.
6. Covenants of the Company. The Company agrees that:
(a) If the Representatives so request, the Company, on or
prior to the Closing Date, will deliver to the Representatives
conformed copies of the Registration Statement as originally filed,
including all exhibits, any related preliminary prospectus supplement,
the Prospectus and all amendments and supplements to each such
document, in each case as soon as available and in such quantities as
are reasonably requested by the Representatives. The Representatives
will be deemed to have made such a request for copies for each of the
several Underwriters and Xxxxxxxx Xxxxxxx LLP, counsel to the
Underwriters, with respect to any such documents that are not
electronically available through the Commission's XXXXX filing system.
(b) The Company will pay all expenses in connection with (i)
the preparation and filing by it of the Registration Statement and the
Prospectus, (ii) the preparation, issuance and delivery of the Senior
Notes, (iii) any fees and expenses of the Trustee and (iv)
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the printing and delivery to the Underwriters, in reasonable
quantities, of copies of the Registration Statement and the Prospectus
(each as originally filed and as subsequently amended). In addition,
the Company will pay the reasonable out of pocket fees and
disbursements of Underwriters' outside counsel, Xxxxxxxx Xxxxxxx LLP,
in connection with the qualification of the Senior Notes under state
securities or blue sky laws or investment laws (if and to the extent
such qualification is required by the Underwriters or the Company).
(c) If, during the time when a prospectus relating to the
Senior Notes is required to be delivered under the Securities Act, any
event occurs as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, or if it is necessary at any time to amend the
Prospectus to comply with the Securities Act, the Company promptly will
(i) notify the Underwriters through the Representatives to suspend
solicitation of purchases of the Senior Notes and (ii) at its expense,
prepare and file with the Commission an amendment or supplement which
will correct such statement or omission or an amendment which will
effect such compliance. During the period specified above, the Company
will continue to prepare and file with the Commission on a timely basis
all documents or amendments required under the Securities Exchange Act
and the applicable rules and regulations of the Commission thereunder;
provided, that the Company shall not file such documents or amendments
without also furnishing copies thereof to the Representatives and
Xxxxxxxx Xxxxxxx LLP. Any such documents or amendments which are
electronically available through the Commission's XXXXX filing system
shall be deemed to have been furnished by the Company to the
Representatives and Xxxxxxxx Xxxxxxx LLP.
(d) The Company will advise the Representatives promptly of
any proposal to amend or supplement the Registration Statement or the
Prospectus and will afford the Representatives a reasonable opportunity
to comment on any such proposed amendment or supplement prior to
filing; and the Company will also advise the Representatives promptly
of the filing of any such amendment or supplement and of the
institution by the Commission of any stop order proceedings in respect
of the Registration Statement or of any part thereof and will use its
best efforts to prevent the issuance of any such stop order and to
obtain as soon as possible its lifting, if issued.
(e) The Company will make generally available to its security
holders, as soon as it is practicable to do so, an earnings statement
of the Company (which need not be audited) in reasonable detail,
covering a period of at least 12 months beginning within three months
after the effective date of the Registration Statement, which earnings
statement shall satisfy the requirements of Section 11(a) of the
Securities Act.
(f) The Company will furnish such proper information as may be
lawfully required and otherwise cooperate in qualifying the Senior
Notes for offer and sale under the securities or blue sky laws of such
jurisdictions as the Representatives may designate; provided, however,
that the Company shall not be required in any state to qualify as a
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foreign corporation, or to file a general consent to service of process, or to
submit to any requirements which it deems unduly burdensome.
(g) Fees and disbursements of Xxxxxxxx Xxxxxxx LLP, who is acting as
counsel for the Underwriters (exclusive of fees and disbursements of such
counsel which are to be paid as set forth in Section 6(b)), shall be paid by the
Underwriters; provided, however, that if this Agreement is terminated in
accordance with the provisions of Sections 7 or 8 hereof, the Company shall
reimburse the Representatives for the account of the Underwriters for the amount
of such fees and disbursements.
(h) During the period beginning on the date of this Agreement and
continuing to and including the Closing Date, the Company will not, without the
prior written consent of the Representatives, directly or indirectly, sell or
offer to sell or otherwise dispose of any Senior Notes or any security
convertible into or exchangeable for Senior Notes or any debt securities
substantially similar to Senior Notes (except for the Senior Notes issued
pursuant to this Agreement).
7. Conditions of Underwriters' Obligations; Termination by the Underwriters.
(a) The obligations of the Underwriters to purchase and pay for the
Senior Notes on the Closing Date shall be subject to the following conditions:
(i) No stop order suspending the effectiveness of the Registration
Statement shall be in effect on the Closing Date and no proceedings for
that purpose shall be pending before, or to the knowledge of the Company
threatened by, the Commission on such date. The Representatives shall have
received, prior to payment for the Senior Notes, a certificate dated the
Closing Date and signed by the President or any Vice President of the
Company to the effect that no such stop order is in effect and that no
proceedings for such purpose are pending before or, to the knowledge of the
Company, threatened by the Commission.
(ii) The relevant order or orders of the State Corporation
Commission of Virginia authorizing the issuance of the Senior Notes, a copy
of which has been provided to the Representatives, shall remain in full
force and effect.
(iii) On the Closing Date the Representatives shall receive, on
behalf of the several Underwriters, the opinions of Xxxxxxxx Xxxxxxx LLP,
counsel to the Underwriters, McGuireWoods LLP, counsel to the Company, and
the Company's General Counsel, substantially in the forms attached hereto
as Schedules III, IV and V, respectively, and all in form and substance
satisfactory to the Representatives.
(iv) The Representatives shall have received from Deloitte & Touche
LLP on the date of this Agreement and on the Closing Date letters addressed
to the Representatives containing statements and information of the type
ordinarily included in accountants' SAS 72 "comfort letters" to
underwriters with respect to the
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financial statements and certain financial information contained in
or incorporated by reference into the Prospectus, including the pro
forma financial information.
(v) Subsequent to the execution of this Agreement and prior to
the Closing Date, (A) except as reflected in, or contemplated by, the
Registration Statement and the Prospectus (exclusive of amendments or
supplements after the date hereof), there shall not have occurred (1)
any change in the senior debt securities of the Company of the same
class as the Senior Notes (other than a decrease in the aggregate
principal amount thereof outstanding), (2) any material adverse
change in the general affairs, financial condition or earnings of the
Company and its subsidiaries taken as a whole or (3) any material
transaction entered into by the Company other than a transaction in
the ordinary course of business, the effect of which in each such
case in the reasonable judgment of the Representatives is so material
and so adverse that it makes it impracticable to proceed with the
public offering or delivery of the Senior Notes on the terms and in
the manner contemplated in the Prospectus and this Agreement, and (B)
there shall not have occurred (1) a downgrading in the rating
accorded the Company's senior unsecured notes, or securities that are
pari passu to the Company's senior unsecured notes, by any
"nationally recognized statistical rating organization" (as that term
is defined by the Commission for purposes of Rule 436(g)(2) under the
Securities Act) and no such organization shall have given any notice
of any intended or potential downgrading or of any review for a
possible change with possible negative implications in its ratings of
such securities, (2) any general suspension of trading in securities
on the New York Stock Exchange or any limitation on prices for such
trading or any restrictions on the distribution of securities
established by the New York Stock Exchange or by the Commission or by
any federal or state agency or by the decision of any court, (3) a
suspension of trading of any securities of the Company or of Dominion
Resources, Inc. on the New York Stock Exchange, (4) a banking
moratorium declared either by federal or New York State authorities
or (5) any outbreak or escalation of major hostilities in which the
United States is involved, any declaration of war by the United
States Congress or any other substantial national or international
calamity or crisis resulting in the declaration of a national
emergency, or if there has occurred any material adverse change in
the financial markets; provided, the effect of such outbreak,
escalation, declaration, calamity, crisis or material adverse change
shall, in the reasonable judgment of the Representatives, make it
impracticable to proceed with the public offering or delivery of the
Senior Notes on the terms and in the manner contemplated in the
Prospectus and in this Agreement.
(vi) On the Closing Date, the representations and warranties of
the Company in this Agreement shall be true and correct as if made on
and as of such date, and the Company shall have performed all
obligations and satisfied all conditions required of it under this
Agreement; and, on the Closing Date, the Representatives shall have
received a certificate to such effect signed by the President or any
Vice President of the Company.
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(vii) All legal proceedings to be taken in connection with the
issuance and sale of the Senior Notes shall have been satisfactory in
form and substance to Xxxxxxxx Xxxxxxx LLP.
(b) In case any of the conditions specified above in Section 7(a)
shall not have been fulfilled, this Agreement may be terminated by the
Representatives upon mailing or delivering written notice thereof to the
Company; provided, however, that in case the conditions specified in
subsections 7(a)(v) and (vi) shall not have been fulfilled, this Agreement
may not be so terminated by the Representatives unless Underwriters who
have agreed to purchase in the aggregate 50% or more of the aggregate
principal amount of the Senior Notes shall have consented to such
termination and the aforesaid notice shall so state. Any such termination
shall be without liability of any party to any other party except as
otherwise provided in Section 9 and Sections 6(b), 6(g) and 7(c) hereof.
(c) If this Agreement shall be terminated by the Representatives
pursuant to Section 7(b) above or because of any failure or refusal on the
part of the Company to comply with the terms or to fulfill any of the
conditions of this Agreement, or if for any reason the Company shall be
unable to perform its obligations under this Agreement, then in any such
case, the Company will reimburse the Underwriters, severally, for all
out-of-pocket expenses (in addition to the fees and disbursements of their
outside counsel as provided in Section 6(g)) reasonably incurred by such
Underwriters in connection with this Agreement or the offering contemplated
hereunder and, upon such reimbursement, the Company shall be absolved from
any further liability hereunder, except as provided in Section 6(b) and
Section 9.
8. Conditions of the Obligation of the Company. The obligation of the
Company to deliver the Senior Notes shall be subject to the conditions set forth
in the first sentence of Section 7(a)(i) and in Section 7(a)(ii). In case such
conditions shall not have been fulfilled, this Agreement may be terminated by
the Company by mailing or delivering written notice thereof to the
Representatives. Any such termination shall be without liability of any party to
any other party except as otherwise provided in Sections 6(b), 6(g), 9 and 10
hereof.
9. Indemnification and Contribution. (a) The Company agrees to indemnify
and hold harmless each Underwriter and each person who controls any Underwriter
within the meaning of Section 15 of the Securities Act or Section 20(a) of the
Securities Exchange Act, against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become subject
under the Securities Act, the Securities Exchange Act, or any other statute or
common law and to reimburse each such Underwriter and controlling person for any
legal or other expenses (including, to the extent hereinafter provided,
reasonable outside counsel fees) incurred by them in connection with
investigating or defending any such losses, claims, damages, or liabilities, or
in connection with defending any actions, insofar as such losses, claims,
damages, liabilities, expenses or actions arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus, or in either such document as amended
or supplemented (if any amendments or supplements thereto shall have been
furnished), or any preliminary Prospectus (if and when used prior to the date
hereof), or the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the
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statements therein not misleading; provided that the foregoing indemnity
agreement, insofar as it relates to any preliminary Prospectus, shall not inure
to the benefit of any Underwriter (or to the benefit of any person who controls
such Underwriter) on account of any losses, claims, damages or liabilities
arising out of the sale of any of the Senior Notes by such Underwriter to any
person if it shall be established that a copy of the Prospectus, excluding any
documents incorporated by reference (as supplemented or amended, if the Company
shall have made any supplements or amendments which have been furnished to the
Representatives), shall not have been sent or given by or on behalf of such
Underwriter to such person at or prior to the written confirmation of the sale
to such person in any case where such delivery is required by the Securities Act
and the Company satisfied its obligations pursuant to Section 6(a) hereof, if
the misstatement or omission leading to such loss, claim, damage or liability
was corrected in the Prospectus (excluding any documents incorporated by
reference) as amended or supplemented, and such correction would have cured the
defect giving rise to such loss, claim, damage, or liability; and provided
further, however, that the indemnity agreement contained in this Section 9(a)
shall not apply to any such losses, claims, damages, liabilities, expenses or
actions arising out of or based upon any such untrue statement or alleged untrue
statement, or any such omission or alleged omission, if such statement or
omission was made in reliance upon information furnished herein or otherwise in
writing to The Company by or on behalf of any Underwriter for use in the
Registration Statement or any amendment thereto, in the Prospectus or any
supplement thereto, or in any preliminary Prospectus. The indemnity agreement of
The Company contained in this Section 9(a) and the representations and
warranties of The Company contained in Section 3 hereof shall remain operative
and in full force and effect, regardless of any investigation made by or on
behalf of any Underwriter or any such controlling person, and shall survive the
delivery of the Senior Notes.
(b) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless The Company, its officers and directors, and each person who
controls any of the foregoing within the meaning of Section 15 of the Securities
Act or Section 20(a) of the Securities Exchange Act, against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of them
may become subject under the Securities Act, the Securities Exchange Act, or any
other statute or common law and to reimburse each of them for any legal or other
expenses (including, to the extent hereinafter provided, reasonable outside
counsel fees) incurred by them in connection with investigating or defending any
such losses, claims, damages or liabilities or in connection with defending any
actions, insofar as such losses, claims, damages, liabilities, expenses or
actions arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or the
Prospectus, or in either such document as amended or supplemented (if any
amendments or supplements thereto shall have been furnished), or any preliminary
Prospectus (if and when used prior to the date hereof), or the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading if such statement or
omission was made in reliance upon information furnished herein or in writing to
the Company by or on behalf of such Underwriter for use in the Registration
Statement or the Prospectus or any amendment or supplement to either thereof, or
any preliminary Prospectus. The indemnity agreement of the respective
Underwriters contained in this Section 9(b) shall remain operative and in full
force and effect, regardless of any investigation made by or on behalf of the
Company or any such controlling person, and shall survive the delivery of the
Senior Notes.
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(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 outside counsel retained by them; provided that, if the defendants
(including impleaded parties) in any such action include both the indemnified
party and the indemnifying party (or parties) and the indemnified party shall
have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to those
available to the indemnifying party (or parties), the indemnified party shall
have the right to select separate counsel to assert such legal defenses and to
participate otherwise in the defense of such action on behalf of such
indemnified party. The indemnifying party shall bear the reasonable fees and
expenses of outside counsel retained by the indemnified party if (i) the
indemnified party shall have retained such counsel in connection with the
assertion of legal defenses in accordance with the proviso to the preceding
sentence (it being understood, however, that the indemnifying party shall not be
liable for the expenses of more than one separate counsel (in addition to one
local counsel), representing the indemnified parties under Section 9(a) or 9(b),
as the case may be, who are parties to such action), (ii) the indemnifying party
shall have elected not to assume the defense of such action, (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the commencement of the action, or (iv) the indemnifying party
has authorized the employment of counsel for the indemnified party at the
expense of the indemnifying party. Notwithstanding the foregoing sentence, an
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent (such consent not to be unreasonably
withheld), but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened proceeding
in respect of which indemnification may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such a proceeding), unless
such settlement (x) includes an unconditional release of such indemnified party
from all liability on claims that are the subject matter of such proceeding and
(y) does not include a statement as to or an admission of fault, culpability or
failure to act by or on behalf of any indemnified party.
(d) If the indemnification provided for in Section 9(a) or 9(b) is
unavailable to or insufficient to hold harmless an indemnified party in respect
of any losses, claims, damages or liabilities (or actions in respect thereof)
referred to therein, then each indemnifying party shall
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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 Company and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this Section 9(d) were
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to above in this
Section 9(d). The amount paid or payable by an indemnified party as a result of
the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this Section 9(d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations under
this Section 9(d) to contribute are several in proportion to their respective
underwriting obligations and not joint. The remedies provided for in this
Section 9 are not exclusive and shall not limit any rights or remedies which may
otherwise be available to any indemnified party at law or in equity.
10. Termination. If any one or more of the Underwriters shall fail or
refuse to purchase the Senior Notes which it or they have agreed to purchase
hereunder, and the aggregate principal amount of the Senior Notes which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
is not more than one-tenth of the aggregate principal amount of the Senior
Notes, then the other Underwriters shall be obligated severally in the
proportions which the principal amount of the Senior Notes set forth opposite
their respective names in Schedule I bears to the aggregate underwriting
obligations of all non-defaulting Underwriters, or in such other proportions as
the Underwriters may specify, to purchase the Senior Notes which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase. If any
Underwriter or Underwriters shall so fail or refuse to purchase Senior Notes and
the aggregate principal amount of the Senior Notes with respect to which such
default occurs is more than one-tenth of the aggregate principal amount of the
Senior Notes and arrangements satisfactory to the Underwriters and the Company
for the purchase of such Senior Notes are not made within 36 hours after such
default, this Agreement will terminate without liability on the part of any
non-defaulting Underwriter (except as provided in Section 6(g) and Section 9) or
of the Company (except as provided in Section 6(b) and Section 9). In any such
case not involving a termination, either the Representatives or the Company
shall have the right to postpone the Closing Date, but in no event for longer
than seven days, in order that the required changes, if any, in the Registration
Statement and in the Prospectus or in any other documents or arrangements may be
effected. Any action taken under this Section 10 shall not relieve any
defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
-11-
11. Representations, Warranties and Agreements to Survive Delivery. All
representations, warranties and agreements contained in this Agreement or
contained in certificates of officers of the Company submitted pursuant hereto
shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of any Underwriter or any controlling person
of any Underwriter, or by or on behalf of the Company, and shall survive
delivery of the Senior Notes.
12. Miscellaneous. The validity and interpretation of this Agreement
shall be governed by the laws of the State of New York. This Agreement shall
inure to the benefit of the Company, the Underwriters and, with respect to the
provisions of Section 9 hereof, each controlling person and each officer and
director of the Company referred to in Section 9, and their respective
successors, assigns, executors and administrators. Nothing in this Agreement is
intended or shall be construed to give to any other person, firm or corporation
any legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision herein contained. The term "successors" as used in
this Agreement shall not include any purchaser, as such, of any of the Senior
Notes from any of the several Underwriters.
13. Notices. All communications hereunder shall be in writing and if to
the Underwriters shall be mailed, faxed or delivered to the Representatives at
the address set forth on Schedule II hereto, or if to the Company shall be
mailed, faxed or delivered to it, attention of Treasurer, Virginia Electric and
Power Company, 000 Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000 (facsimile number:
(000) 000-0000).
-12-
Please sign and return to us a counterpart of this letter, whereupon
this letter will become a binding agreement between the Company and the several
Underwriters in accordance with its terms.
VIRGINIA ELECTRIC AND POWER COMPANY
By:__________________________________
Name:
Title:
-13-
The foregoing agreement is
hereby confirmed and accepted,
as of the date first above
written.
____________________
acting individually and as Representative
of the Underwriters named in Schedule I hereto
By:________________________________
Authorized Signatory
Name:
Title:
-14-
SCHEDULE I
Principal Amount
of Senior Notes
Underwriter to be Purchased
----------- -----------------
______________________________ $____________
______________________________ $____________
______________________________ $____________
______________________________ $____________
______________________________ $____________
Total: $____________
I-1
SCHEDULE II
Title of Senior Notes: 200__ Series __ _____% Senior Notes Due __________
Aggregate Principal Amount of the Senior Notes: $__________
Initial Price to Public:
______% of the principal amount of the Senior Notes plus
accrued interest, if any, from the date of issuance
Initial Purchase Price to be paid by Underwriters:
______% of the principal amount of the Senior Notes, such
Initial Purchase Price to be paid by the Underwriters as set
forth in Sections 4 and 5 of the Agreement to which this
Schedule is attached
Time of Delivery: __________
Closing Location: One Xxxxx Center
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, XX 00000
The Senior Notes will be available for inspection by the Representatives at:
One Xxxxx Center
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Address for Notices to the Underwriters:
____________________
____________________
____________________
____________________
____________________
with a copy of any notice pursuant to Section 9(c) also sent to:
Xxxxxxxx Xxxxxxx LLP
0000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn: F. Xxxxxxxxx Xxxxxxxx, Xx., Esquire
facsimile number: (000) 000-0000
II-1
SCHEDULE III
PROPOSED FORM OF OPINION
OF
XXXXXXXX XXXXXXX LLP
Bank of America Center
0000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Re: VIRGINIA ELECTRIC AND POWER COMPANY
200__ Series __ _____% Senior Notes,
Due __________
January 30, 2002
____________________
as Representative for the Underwriters
listed in Schedule I to the Underwriting Agreement
____________________
____________________
____________________
Ladies and Gentlemen:
We have acted as your counsel in connection with arrangements for the
issuance by Virginia Electric and Power Company ("the Company") of up to U.S.
$___0,000,000 aggregate principal amount of its 200__ Series __ _____% Senior
Notes Due __________ (the Senior Notes) and the offering of the Senior Notes by
you pursuant to an Underwriting Agreement dated __________ by and between you
and the Company (the Underwriting Agreement). This letter is being delivered to
you pursuant to the Underwriting Agreement. All terms not otherwise defined
herein shall have the meanings set forth in the Underwriting Agreement.
We have examined originals, or copies certified to our satisfaction of
such corporate records of the Company, indentures, agreements and other
instruments, certificates of public officials, certificates of officers and
representatives of the Company and of the Trustee, and other documents, as we
have deemed necessary as a basis for the opinions hereinafter expressed. As to
various questions of fact material to such opinions, we have, when relevant
III-1
facts were not independently established, relied upon certifications by officers
of the Company, the Trustee and other appropriate persons and statements
contained in the Registration Statement hereinafter mentioned. All legal
proceedings taken as of the date hereof in connection with the transactions
contemplated by the Underwriting Agreement have been satisfactory to us.
In addition, we attended the closing held today at the offices of
McGuireWoods LLP, One Xxxxx Center, Richmond, Virginia, at which the Company
satisfied the conditions contained in Section 7 of the Underwriting Agreement
that are required to be satisfied as of the Closing Date.
Based upon the foregoing, and having regard to legal considerations
that we deem relevant, we are of the opinion that:
1. The Company is a corporation duly incorporated and existing as a
corporation in good standing under the laws of Virginia, and has the corporate
power to transact its business as described in the Prospectus.
2. The Underwriting Agreement has been duly authorized by all
necessary corporate action and has been duly executed and delivered by the
Company.
3. The Indenture has been duly authorized, executed and delivered by
the Company and has been duly qualified under the Trust Indenture Act and
constitutes a valid and binding obligation of the Company, except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights generally or
by general equitable principles (regardless of whether enforcement is considered
in a proceeding in equity or at law).
4. The Senior Notes have been duly authorized and executed by the
Company and, when authenticated by the Trustee in accordance with, and in the
form contemplated by, the Indenture and issued, delivered and paid for as
provided in the Underwriting Agreement, will have been duly issued under the
Indenture and will constitute valid and binding obligations of the Company
entitled to the benefits provided by the Indenture, except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights generally or
by general equitable principles (regardless of whether enforcement is considered
in a proceeding in equity or at law).
5. The Registration Statement (Reg. No. __________) with respect to
the Senior Notes filed pursuant to the Securities Act, has become effective and
remains in effect at this date, and the Prospectus may lawfully be used for the
purposes specified in the Securities Act in connection with the offer for sale
and the sale of Senior Notes in the manner therein specified.
6. The Registration Statement and the Prospectus (except that we
express no comment or belief with respect to any historical or pro forma
financial statements and schedules and other financial or statistical
information contained or incorporated by reference in the Registration Statement
or Prospectus) appear on their face to be appropriately responsive in all
III-2
material respects to the requirements of the Securities Act, and to the
applicable rules and regulations of the Commission thereunder.
7. No approval or consent by any public regulatory body, other than
the previously obtained order of the State Corporation Commission of Virginia,
is legally required in connection with the sale of the Senior Notes as
contemplated by the Underwriting Agreement (except to the extent that compliance
with the provisions of securities or blue sky laws of certain states may be
required in connection with the sale of the Senior Notes in such states) and the
carrying out of the provisions of the Underwriting Agreement.
8. As to the statements relating to the Senior Notes under DESCRIPTION
OF DEBT SECURITIES and ADDITIONAL TERMS OF SENIOR DEBT SECURITIES in the
prospectus initially filed as part of the Registration Statement, as
supplemented by the statements under DESCRIPTION OF THE SENIOR NOTES in the
Prospectus Supplement dated __________, we are of the opinion that the
statements are accurate and do not omit any material fact required to be stated
therein or necessary to make such statements not misleading.
As to the statistical statements in the Registration Statement (which
includes statistical statements in the Incorporated Documents), we have relied
solely on the officers of the Company. We have not undertaken to determine
independently the accuracy or completeness of the statements contained or
incorporated by reference in the Registration Statement or in the Prospectus. We
accordingly assume no responsibility for the accuracy or completeness of the
statements made in the Registration Statement, except as stated above in the
preceding paragraph in regard to the captions set forth in such preceding
paragraph. We note that the Incorporated Documents were prepared and filed by
the Company without our participation. We have, however, participated in
conferences with counsel for and representatives of the Company in connection
with the preparation of the Registration Statement, the Prospectus as it was
initially issued and as has been supplemented or amended, and we have reviewed
the Incorporated Documents and such of the corporate records of the Company as
we deemed advisable. None of the foregoing disclosed to us any information that
gives us reason to believe that the Registration Statement contained on the date
the Registration Statement became effective, or the Prospectus contained on the
date it was issued or the date it was supplemented or amended, or that the
Registration Statement or the Prospectus (in all cases, excepting the financial
statements and schedules and other financial information contained or
incorporated therein by reference and any pro forma financial information (and
notes thereto) included or incorporated by reference therein, as to which we
express no belief) contains on the date hereof, any untrue statement of a
material fact or omitted or omits on the date hereof to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading. The foregoing assurance is provided 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 prior to the date of the Underwriting
Agreement.
III-3
We do not purport to express an opinion on any laws other than those
of the Commonwealth of Virginia, the State of New York and the United States of
America. This opinion may not be relied upon by, nor may copies be delivered to,
any person without our prior written consent.
Very truly yours,
XXXXXXXX XXXXXXX LLP
III-4
SCHEDULE IV
PROPOSED FORM OF OPINION
OF
MCGUIREWOODS LLP
One Xxxxx Center
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Re: VIRGINIA ELECTRIC AND POWER COMPANY
200__ Series __ _____% Senior Notes
Due __________
----------
____________________
as Representative for the Underwriters
listed in Schedule I to the Underwriting Agreement
____________________
____________________
____________________
Ladies and Gentlemen:
The arrangements for issuance of up to U.S. $___0,000,000 aggregate
principal amount of 200__ Series __ _____% Senior Notes Due __________ (the
"Senior Notes"), of Virginia Electric and Power Company (the "Company") pursuant
to an Underwriting Agreement dated __________ by and between the Company and the
Underwriters listed on Schedule I as attached thereto (the "Underwriting
Agreement"), have been taken under our supervision as counsel for the Company.
Terms not otherwise defined herein have the meanings set forth in the
Underwriting Agreement.
We have examined originals, or copies certified to our satisfaction,
of such corporate records of the Company, indentures, agreements, and other
instruments, certificates of public officials, certificates of officers and
representatives of the Company and of the Trustee, and other documents, as we
have deemed necessary as a basis for the opinions hereinafter expressed. As to
various questions of fact material to such opinions, we have, when relevant
facts were not independently established, relied upon certifications by officers
of the Company, the Trustee and other appropriate persons and statements
contained in the Registration Statement
IV-1
hereinafter mentioned. All legal proceedings taken as of the date hereof in
connection with the transactions contemplated by the Underwriting Agreement have
been satisfactory to us.
On this basis we are of the opinion that:
1. No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency, domestic or foreign (other than those required under the
Securities Act and the Rules and Regulations and an authorization by the State
Corporation Commission of Virginia, all of which have been obtained, reports to
be filed with the State Corporation Commission of Virginia after issuance of the
Senior Notes, or as may be required under the securities or blue sky laws of the
various states) is necessary or required in connection with the due
authorization, execution and delivery of the Underwriting Agreement or the due
execution, delivery or performance of the Indenture by the Company or for the
offering, issuance, sale or delivery of the Senior Notes.
2. The Indenture has been authorized, executed and delivered by
the Company and has been duly qualified under the Trust Indenture Act and
constitutes a valid and binding obligation of the Company except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights generally or
by general equitable principles (regardless whether enforcement is in a
proceeding in equity or at law).
3. The Senior Notes have been duly authorized and executed by the
Company and, when completed and authenticated by the Trustee in accordance with,
and in the form contemplated by, the Indenture and issued, delivered and paid
for in accordance with the Underwriting Agreement, will have been duly issued
under the Indenture and will constitute valid and binding obligations of the
Company entitled to the benefits provided by the Indenture except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights generally or
by general equitable principles (regardless of whether enforcement is in a
proceeding in equity or at law).
4. The Registration Statement (Reg. No. __________) with respect
to the Senior Notes filed pursuant to the Securities Act, has become effective
and remains in effect at this date, and the Prospectus may lawfully be used for
the purposes specified in the Securities Act in connection with the offer for
sale and the sale of the Senior Notes in the manner therein specified.
5. The Registration Statement and the Prospectus (except the
financial statements and schedules contained or incorporated by reference
therein, as to which we express no opinion) appear on their face to be
appropriately responsive in all material respects to the requirements of the
Securities Act, and to the applicable rules and regulations of the Commission
thereunder.
6. We are of the opinion that the statements relating to the
Senior Notes contained in the prospectus initially filed as part of the
Registration Statement under
IV-2
DESCRIPTION OF DEBT SECURITIES and ADDITIONAL TERMS OF SENIOR DEBT SECURITIES,
as supplemented by the statements under DESCRIPTION OF THE SENIOR NOTES in the
Prospectus Supplement dated __________, are substantially accurate and fair.
We have participated in conferences with officers and other
representatives of the Company and representatives of the Underwriters at which
the contents of the Registration Statement and the Prospectus were discussed,
and we have consulted with officers and other employees of the Company to inform
them of the disclosure requirements of the Securities Act. We have examined
various reports, records, contracts and other documents of the Company and
orders and instruments of public officials, which our investigation led us to
deem pertinent. In addition, we attended the due diligence meetings with
representatives of the Company and the closing at which the Company satisfied
the conditions contained in Section 7 of the Underwriting Agreement. We have
not, however, undertaken to make any independent review of other records of the
Company which our investigation did not lead us to deem pertinent. As to the
statistical statements in the Registration Statement (which includes the
Incorporated Documents), we have relied solely on the officers of the Company.
We accordingly assume no responsibility for the accuracy or completeness of the
statements made in the Registration Statement, except as stated above in the
preceding paragraph in regard to the captions set forth in such preceding
paragraph. But such conferences, consultation, examination and attendance
disclosed to us no information with respect to such other matters that gives us
reason to believe that the Registration Statement contained on the date the
Registration Statement became effective, or the Prospectus contained on the date
it was issued, or that the Registration Statement or the Prospectus (in each
case, except with respect to the financial statements and schedules and other
financial information contained or incorporated by reference in the Registration
Statement or Prospectus) contains on the date hereof, any untrue statement of a
material fact or omitted on such date or omits on the date hereof to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading. The foregoing assurance is provided 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 prior to the date of the
Underwriting Agreement.
IV-3
We do not purport to express an opinion on any laws other than those
of the Commonwealth of Virginia, the State of New York and the United States of
America. This opinion may not be relied upon by, nor may copies be delivered to,
any person without our prior written consent.
Yours very truly,
MCGUIREWOODS LLP
IV-4
SCHEDULE V
PROPOSED FORM OF OPINION
OF
GENERAL COUNSEL OF
VIRGINIA ELECTRIC AND POWER COMPANY
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Re: VIRGINIA ELECTRIC AND POWER COMPANY
200__ Series __ _____% Senior Notes
Due __________
----------
____________________
as Representative for the Underwriters
listed in Schedule I to the Underwriting Agreement
____________________
____________________
____________________
Ladies and Gentlemen:
The arrangements for issuance of up to U.S. $___0,000,000 aggregate
principal amount of 200__ Series __ _____% Senior Notes Due __________ (the
Senior Notes), of Virginia Electric and Power Company ("the Company"), pursuant
to an Underwriting Agreement dated __________ by and between the Company and the
Underwriters listed on Schedule I as attached thereto (the Underwriting
Agreement), have been taken under my supervision as Vice President and General
Counsel of the Company. Terms not otherwise defined herein have the meanings set
forth in the Underwriting Agreement.
As Vice President and General Counsel of Virginia Electric and
Power Company, I have general responsibility over the attorneys within the
Company's Legal Department responsible for rendering legal counsel to the
Company regarding corporate, financial, securities and other matters. I am
generally familiar with the organization, business and affairs of the Company. I
am also familiar with the proceedings taken and proposed to be taken by the
Company in connection with the offering and sale of the Senior Notes, and I have
examined such
V-1
