1
Exhibit 1-D
DELMARVA POWER & LIGHT COMPANY
First Mortgage Bonds
UNDERWRITING AGREEMENT
______ __, 199_
To the Representative named in Schedule I hereto
of the Underwriters named in Schedule II hereto
Ladies and Gentlemen:
The undersigned, Delmarva Power & Light Company, a Delaware and
Virginia corporation (the "Company"), hereby confirms its agreement with each of
the Underwriters hereinafter named as follows:
The term "Underwriters" as used herein shall be deemed to mean the
firm or corporation or the several firms or corporations named in Schedule II
hereto and any underwriter substituted as provided in Section 3 and the term
"Underwriter" shall be deemed to mean one of such Underwriters. If the firm or
firms listed in Schedule I hereto (the "Representative") are the same as the
firm or firms listed in Schedule II hereto, then the terms "Underwriters" and
"Representative", as used herein, shall each be deemed to refer to such firm or
firms. The Representative represents that it has been authorized by the
Underwriters to execute this Agreement on their behalf and to act for them in
the manner herein provided. All obligations of the Underwriters hereunder are
several and not joint. If more than one firm is named in Schedule I hereto, any
action under or in respect of this Agreement may be taken by such firms jointly
as the Representative or by one of the firms acting on behalf of the
Representative and such action will be binding upon all the Underwriters.
1. Description of Bonds. The Company has authorized by appropriate
corporate action and proposes to issue and sell to the Underwriters its First
Mortgage Bonds of the series designations, with the terms and in the amounts
specified in Schedule I hereto (the "Bonds"), to be issued under its Mortgage
and Deed of Trust, dated as of October 1, 1943, to the New York Trust Company
(to which the Chemical Bank is successor), as trustee (the "Trustee"), as
heretofore supplemented and amended, including the Eighty-Eighth Supplemental
Indenture with respect to the Bonds (the "Supplemental Indenture"), a copy of
which has
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been heretofore delivered to the Representative (collectively,
the "Mortgage").
2. Representations, Warranties and Agreements of the Company. The
Company represents and warrants to, and agrees with, the Underwriters that:
(a) A registration statement (identified in Schedule I
hereto), together with amendments thereto, if any, with respect to the
Bonds has been prepared by the Company and filed with the Securities and
Exchange Commission (the "Commission") in conformity with the rules,
regulations and releases of the Commission (the "Rules and Regulations")
under the Securities Act of 1933, as amended (the "Act"). Such
registration statement has been declared effective by the Commission and
the Mortgage has been qualified under the Trust Indenture Act of 1939, as
amended. Copies of such registration statement, together with all
amendments thereto, if any, have heretofore been delivered to the
Representative, and copies of any amendments thereto, including the
exhibits filed therewith, which shall be filed subsequent to the date
hereof also will be delivered to the Representative. As used in this
Agreement, the term "Registration Statement" means such registration
statement, including exhibits, financial statements and all documents
incorporated therein by reference, as amended through the date hereof. As
used in this Agreement, (i) the term "Prospectus" means (A) if a
preliminary prospectus supplement with respect to the Bonds was prepared
in conformity with the Rules and Regulations and, together with the
prospectus in the form included in the Registration Statement, filed with
the Commission pursuant to Rule 424(b) of the Rules and Regulations ("Rule
424(b)"), such preliminary prospectus supplement and prospectus completed
to reflect the terms of the sale of the offering of the Bonds, (B) if no
such preliminary prospectus supplement was so prepared and filed, the
prospectus in the form included in the Registration Statement as to be
supplemented by a prospectus supplement reflecting the terms of the
offering of the Bonds, or (C) if the Bonds are to be offered without a
prospectus supplement, the prospectus in the form included in the
Registration Statement completed to reflect the terms of such offering, in
each case proposed to be filed with the Commission pursuant to Rule 424(b)
on or about the date hereof, and (ii) the term "Prospectus Supplement"
means the prospectus supplement proposed so to be filed with the
Commission, in each case including all documents incorporated in such
prospectus and prospectus supplement by reference (the "Incorporated
Documents"). In the event of
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any amendment to the Registration Statement after the date hereof, the
term "Registration Statement" shall mean such Registration Statement as so
amended. In the event of any amendment or supplement to the Prospectus
after the date of the filing with the Commission of the Prospectus
Supplement pursuant to Rule 424(b), the term "Prospectus" shall mean such
Prospectus as so amended or supplemented; provided, however, that any
supplement to the Prospectus filed with the Commission pursuant to Rule
424(b) with respect to an offering of the Company's securities other than
the Bonds shall not be deemed to be a supplement to or part of the
Prospectus. Any reference herein to the terms "amend", "amendment" or
"supplement" with respect to the Registration Statement or the Prospectus
shall be deemed to refer to and include the filing of any document under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
deemed to be incorporated therein after the date hereof and prior to the
termination of the offering of the Bonds by the Underwriters.
(b) No stop order suspending the effectiveness of the
Registration Statement nor any order preventing or suspending use of the
Prospectus nor any order directed to the adequacy or accuracy of any
Incorporated Document has been issued by the Commission, and no proceeding
for any such purpose has been initiated or is pending or, to the knowledge
of the Company, is contemplated by the Commission.
(c) On the date of this Agreement and at all times subsequent
hereto up to and at the Closing Date (as defined in Section 3), (i) the
Registration Statement and the Prospectus do and will contain all
statements and information which are and will be required to be included
therein by the Act and the Rules and Regulations and do and will conform,
in all material respects, to the requirements of the Act and the Rules and
Regulations; (ii) the Mortgage does and will conform, in all material
respects, to the requirements of the Trust Indenture Act of 1939, as
amended; (iii) the Registration Statement does not and will not 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; and (iv) the Prospectus does not and 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
information contained in or omitted from the Registration Statement or the
Prospectus
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in reliance upon and in conformity with written information furnished to
the Company by any Underwriter expressly for use in the preparation
thereof or to any statement in or omissions from the Statement of
Eligibility of the Trustee under the Mortgage. There are no contracts or
documents of the Company or of any subsidiary of the Company which are
required to be filed as exhibits to the Registration Statement by the Act
or by the Rules and Regulations which have not been filed as required.
(d) The Company has filed timely all reports and all
definitive proxy and information statements required to be filed by the
Company with the Commission pursuant to the Exchange Act and the rules and
regulations of the Commission thereunder. Each of the Incorporated
Documents, when it and when any amendment thereto was filed with the
Commission, complied as to form in all material respects to the
requirements of the Exchange Act, and the rules and regulations of the
Commission thereunder, and any Incorporated Document and any amendment
thereto, when filed with the Commission, will comply as to form in all
material respects to the requirements of the Exchange Act and the rules
and regulations of the Commission thereunder; and none of such documents
includes or will include any untrue statement of a material fact or omits
or will omit to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(e) The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of Delaware and
Virginia, with all corporate power and other authority, including
franchises, necessary to own or lease its properties and conduct its
business as described in the Registration Statement and the Prospectus and
to issue and sell the Bonds; the Company is duly qualified to do business
as a foreign corporation in good standing in Maryland, New Jersey, Ohio
and Pennsylvania, being all of the jurisdictions in which the conduct of
its business or its ownership or leasing of properties requires such
qualification, with all corporate authority, including franchises
necessary to own or lease its properties and conduct its business as
described in the Registration Statement and Prospectus. The Company has no
direct subsidiaries other than Delmarva Energy Company, Delmarva
Industries, Inc., Delmarva Capital Investments, Inc., Delmarva Services
Company, Conectiv Services, Inc. and Conectiv Communications, Inc. (the
"Subsidiaries"), all of the stock of each of which is owned by the Company
free and
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clear of any lien, pledge or other encumbrance, except for those matters
satisfactory to the Underwriters discussed in the opinion of Xxxx X.
Xxxxxxxx, General Counsel for the Company, pursuant to Section 5(d)
hereof. Each of the Subsidiaries has been duly organized and is validly
existing and in good standing under the laws of its jurisdiction of
incorporation and is licensed to do business as a foreign corporation and
is in good standing under the laws of any jurisdiction in which the
conduct of its business or its ownership or leasing of property requires
such qualification, with all corporate and other authority and franchises
necessary to own or lease its properties and conduct its business as
described in the Registration Statement and the Prospectus.
(f) Except as otherwise stated in the Registration Statement
and the Prospectus, each of the Company and the Subsidiaries, as the case
may be, has good and marketable title in fee simple, free from
encumbrances, to all of the real property referred to in the Registration
Statement and the Prospectus as being owned by it, subject to exceptions
which are minor and do not impair the use of the affected property in the
operation of their businesses.
(g) The performance of this Agreement and the consummation of
the transactions herein contemplated and the fulfillment of the terms
hereof will not result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any statute, the Mortgage,
or any indenture, mortgage, deed of trust, note agreement or other
agreement or instrument to which the Company or any of the Subsidiaries is
a party or by which any of them is bound or to which any of their property
is subject, or of the Company's Restated Certificate and Articles of
Incorporation, as amended, or By-Laws, as amended, or any order, rule or
regulation of any court or other governmental body applicable to the
Company or to any of the Subsidiaries or any of their property.
(h) The Company has full power and lawful authority to
authorize, issue and sell the Bonds on the terms and conditions herein set
forth, has taken all corporate action necessary therefor; has obtained
every consent, approval, authorization and other order of any regulatory
body which is required for such authorization, issue or sale, except as
may be required in connection with the resale of the Bonds by the
Underwriters under state securities or blue sky laws; and such consents,
approvals,
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authorizations and other orders are in full force and effect and are not
subject to appeal.
(i) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, except as set
forth in or contemplated by the Registration Statement and the Prospectus:
(1) the Company and the Subsidiaries taken as a whole have not incurred
any material liabilities or obligations, direct or contingent, and have
not entered into any material transaction, not in the ordinary course of
business; (2) there has not been any material change in the capital stock
or long-term debt of the Company and the Subsidiaries taken as a whole or
any material adverse change, or development involving a prospective
material adverse change, in the condition, financial or otherwise, or in
the earnings, business, net worth or results of operations of the Company
and the Subsidiaries taken as a whole; (3) no material loss or damage
(whether or not insured) to the property of the Company and the
Subsidiaries taken as a whole has been sustained; and (4) no legal or
governmental proceeding, domestic or foreign, materially affecting the
Company and the Subsidiaries taken as a whole or the transactions
contemplated by this Agreement, has been instituted or, to the knowledge
of the Company, threatened.
(j) The financial statements set forth in or incorporated by
reference into the Registration Statement and the Prospectus fairly
present the consolidated financial condition of the Company and the
Subsidiaries and the results of their operations as of the dates and for
the periods therein specified; and such financial statements (including
the related notes) have been prepared in accordance with generally
accepted accounting principles which have been consistently applied
throughout the periods involved.
(k) Coopers & Xxxxxxx LLP, which has reported on certain
financial statements filed with the Commission and incorporated by
reference into the Registration Statement and the Prospectus, are
independent public accountants as required by the Act and the Rules and
Regulations.
(l) Except as set forth in or contemplated by the Registration
Statement and the Prospectus, there is not pending any action, suit or
other proceeding to which the Company or any of the Subsidiaries is a
party or of which any property of the Company or any of the Subsidiaries
is the subject, before or by any court or other governmental
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body, which might result in any material adverse change in the condition,
business or prospects of the Company and the Subsidiaries taken as a whole
or might materially adversely affect the properties or assets of the
Company and the Subsidiaries taken as a whole; and no such action, suit or
proceeding is known by the Company to be threatened or contemplated.
(m) At the Closing Date, the Mortgage and the Bonds will
conform in all material respects to all statements in relation thereto
contained in the Registration Statement and the Prospectus, and the
Mortgage and the Bonds will have been duly authorized, executed,
authenticated and delivered and will be legal, valid and binding
obligations of the Company.
(n) At the Closing Date, the Mortgage will constitute a valid
first lien, except as otherwise stated in or permitted by the Mortgage, on
substantially all of the Company's utility plant, real estate and other
properties, and will be enforceable in accordance with its terms, except
as remedies are limited by bankruptcy, insolvency, or other laws of
general application or principles of equity affecting the enforcement of
creditors' rights generally.
(o) The Company is not an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined in the
Investment Company Act of 1940, as amended.
(p) The Company and the Subsidiaries (i) are in compliance
with any and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), (ii) have received all permits,
licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii) are in
compliance with all terms and conditions of any such permit, license or
approval, except where such noncompliance with Environmental Laws, failure
to receive required permits, licenses or other approvals or failure to
comply with the terms and conditions of such permits, licenses or
approvals would not, singly or in the aggregate, have a material adverse
effect on the Company and the Subsidiaries, taken as a whole.
(q) In the ordinary course of its business, the
Company conducts a periodic review of the effect of
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Environmental Laws on the business, operations and properties of the
Company and the Subsidiaries, in the course of which it identifies and
evaluates associated costs and liabilities (including, without limitation,
any capital or operating expenditures required for clean-up, closure of
properties or compliance with Environmental Laws or any permit, license or
approval, any related constraints on operating activities and any
potential liabilities to third parties). On the basis of such review, the
Company has reasonably concluded that such associated costs and
liabilities would not, singly or in the aggregate, have a material adverse
effect on the Company and the Subsidiaries, taken as a whole.
3. Sale, Purchase and Delivery of Bonds; Substitution of
Underwriters. On the basis of the representations, warranties and agreements
herein contained, and subject to the terms and conditions herein 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, the respective
principal amount of Bonds set forth opposite the name of such Underwriter in
Schedule II hereto at the purchase prices set forth in Schedule I hereto.
The Company agrees to make the Bonds available to the Representative
for the purpose of expediting their checking and packaging on behalf of the
Underwriters, at the office of the Trustee or of The Depository Trust Company
("DTC"), not later than 1:30 P.M. on the business day next preceding the Closing
Date.
Payment for the Bonds shall be made at the place, time and date
specified in Schedule I hereto or at such other time and date as the
Representative and the Company may agree in writing, such time and date for
payment being herein referred to as the "Closing Date". On the Closing Date, the
Company shall deliver the Bonds to DTC (or the Representative, if the
Representative and the Company shall so agree in writing), against payment to or
upon the order of the Company of the purchase price of the Bonds, by wire
transfer of immediately available funds to an account or accounts designated in
writing by the Company. Time shall be of the essence, and delivery at the time
determined as set forth above is a further condition of the obligation of each
Underwriter and of the Company. The Bonds so delivered shall be in definitive
form and registered in the name of DTC or its nominee (or in such other name or
names as the Representative and the Company shall agree in writing).
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It is understood that the Underwriters propose to offer the Bonds
for sale as set forth in the Prospectus.
In the event of default by one or more Underwriters in respect of
their obligations under this Agreement to take up and pay for the Bonds pursuant
to this Section , and if the aggregate of such defaults does not exceed 10% of
the aggregate principal amount of the Bonds, the remaining Underwriters shall be
obligated severally (in proportion to their respective commitments hereunder or
in such other proportion as may be agreed upon by the Representative) to
purchase the aggregate principal amount of the Bonds which such defaulting
Underwriter or Underwriters agreed but failed to purchase. If any Underwriter or
Underwriters shall for any reason permitted hereunder cancel their obligations
to purchase hereunder, or shall default in respect of their obligations to take
up and pay for the aggregate principal amount of the Bonds set forth opposite
their respective names in Schedule II hereof upon tender of such Bonds in
accordance with the terms hereof and, in the case of a default, the aggregate of
such defaults exceeds 10% of the aggregate principal amount of the Bonds, the
remaining Underwriters shall have the right to take up and pay for (in such
proportion as may be agreed upon by the Representative) the aggregate principal
amount of the Bonds which the canceling or defaulting Underwriter or
Underwriters agreed but failed to purchase. If such remaining Underwriters do
not, at the Closing Date, take up and pay for the aggregate principal amount of
the Bonds which the canceling or defaulting Underwriter or Underwriters agreed
but failed to purchase, the time for delivery of the Bonds shall be extended for
twenty-four hours, and the Underwriters shall have the privilege of substituting
within such twenty-four hours another underwriter or underwriters satisfactory
to the Company. If no such underwriter or underwriters shall have been
substituted as aforesaid, prior to the termination of such extended time for
delivery, the time for delivery of the Bonds shall be extended for a further
twenty-four hours, during which the Company shall have the privilege of finding
another underwriter or underwriters, satisfactory to the Representative, to
purchase the aggregate principal amount of the Bonds which the canceling or
defaulting Underwriter or Underwriters agreed but failed to purchase. If it
shall be arranged for the remaining Underwriters or substituted underwriters to
take up the aggregate principal amount of the Bonds of the canceling or
defaulting Underwriter or Underwriters as provided in this Section , (i) the
Representative or the Company shall have the right to postpone the time of
delivery of the Bonds for a period of not more than seven full business days, in
order to effect whatever changes that such arrangements may make necessary in
the Registration Statement or the Prospectus,
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or in any other documents or arrangements, and the Company agrees promptly to
file any amendment to the Registration Statement or any supplement to the
Prospectus that such arrangements may make necessary, and (ii) the aggregate
principal amount of the Bonds to be purchased by the remaining Underwriters and
substituted underwriters shall be taken as the basis of their respective
underwriting obligations for all purposes of this Agreement.
If, in the event of a default or cancellation by one or more
Underwriters, the remaining Underwriters shall not take up and pay for all of
the aggregate principal amount of the Bonds agreed to be purchased by the
defaulting or canceling Underwriters or substitute another underwriter or
underwriters as aforesaid and the Company shall not find another underwriter or
underwriters to purchase such aggregate principal amount of the Bonds as
aforesaid, then this Agreement may be terminated by the Company by giving prompt
notice to the remaining Underwriters.
If the Company shall not so elect to terminate this Agreement, it
shall have the right to require such remaining Underwriters, irrespective of the
default or cancellation as aforesaid, to purchase the aggregate principal amount
of the Bonds which they have agreed to purchase hereunder. In such event the
Company shall, within twenty-four hours after such second twenty-four hour
period, give notice thereof in writing to such remaining Underwriters and
thereupon the time for delivery of the Bonds may be postponed for a period of
not more than four full business days in order to effect whatever changes may
thereby be made necessary in the Registration Statement or the Prospectus or in
any other documents or arrangements. The Company agrees, in such event, promptly
to file any amendment to the Registration Statement or any supplement to the
Prospectus which may thereby be made necessary. In the absence of such notice
from the Company, this Agreement shall terminate without further action on the
part of either the Company or the Underwriters.
In the event of any such termination, the Company shall not be under
any liability to any Underwriter (except to the extent provided in Sections 4(e)
and 7 hereof) nor shall any Underwriter (other than an Underwriter who shall
have failed to purchase Bonds otherwise than for some reason permitted under
this Agreement) be under any liability to the Company (except to the extent
provided in Section 7 hereof).
Any action taken by the non-defaulting Underwriters or by the
Company under this Section shall not relieve any defaulting Underwriter from
liability in respect of any default of such Underwriter under this Agreement.
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4. Covenants of the Company. The Company further covenants and
agrees with the Underwriters that:
(a) The Company shall comply with the provisions of, and make
all requisite filings with the Commission pursuant to, Rule 424(b) and
notify the Representative promptly of all such filings. The Company will
not at any time file any amendment to the Registration Statement or
supplement to the Prospectus of which the Representative shall not
previously have been advised and furnished with a copy or to which the
Representative or Xxxx & Priest LLP, counsel for the Underwriters, shall
have reasonably and promptly objected in writing or which is not in
compliance with the Act or the Rules and Regulations. The Company will
prepare and file with the Commission, promptly upon the Representative's
request, any amendment to the Registration Statement or supplement to the
Prospectus which, in the opinion of the Company's counsel and counsel for
the Underwriters, may be necessary or advisable in connection with the
distribution of the Bonds by the Underwriters. The Company will file
timely all reports and any definitive proxy or information statements
required to be filed by the Company with the Commission pursuant to the
Exchange Act and the rules and regulations of the Commission thereunder
subsequent to the date hereof and for so long as the delivery of a
prospectus is required in connection with the offering or sale of the
Bonds.
(b) The Company will notify the Representative promptly and
confirm in writing (i) the issuance of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of the Prospectus or of any order directed to the
adequacy or accuracy of any Incorporated Document or of the initiation of
any proceedings for any such purpose and (ii) the receipt of any comments
from the Commission in respect of the Registration Statement or the
Prospectus, or requesting additional information or the amendment or
supplementation of the Registration Statement or the Prospectus. If the
Commission shall issue a stop order or any order preventing or suspending
the use of the Prospectus or any order directed to the adequacy or
accuracy of any Incorporated Document at any time, or shall initiate any
proceedings for any such purpose, the Company will make every reasonable
effort to prevent the issuance of such order and, if issued, to obtain the
lifting thereof.
(c) Within the time during which a prospectus
relating to the Bonds is required to be delivered under the
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Act, the Company will comply so far as it is able with all requirements
imposed upon it by the Act, as now and hereafter amended, and the Rules
and Regulations, as from time to time in force, so far as necessary to
permit the continuance of sales of or dealings in the Bonds as
contemplated by the provisions hereof and the Prospectus; and if during
such period any event occurs as a result of which the Prospectus 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 during
such period it is necessary to amend or supplement the Prospectus to
comply with the Act or the Rules and Regulations or to file under the
Exchange Act or the rules and regulations of the Commission thereunder any
document incorporated by reference into the Prospectus in order to comply
with the Act, the Rules and Regulations, the Exchange Act or the rules and
regulations of the Commission thereunder, the Company will promptly notify
the Representative and will amend or supplement the Prospectus or file
such document (in form satisfactory to counsel for the Underwriters and
counsel for the Company and at the expense of the Company) so as to
correct such statement or omission or effect such compliance.
(d) The Company will cooperate with the Underwriters in
qualifying and registering the Bonds for sale under the securities laws
and legal investment laws of such jurisdictions as the Representative may
designate, and in continuing such qualifications in effect so long as
required for the distribution of the Bonds; provided, however, that the
Company shall not be obligated to file any general consent to service of
process or to submit to any requirements which it deems unduly burdensome.
The Company will advise the Representative promptly of any order or
communication of any public authority addressed to the Company suspending
or threatening to suspend qualification of the Bonds for sale in any
jurisdiction.
(e) Whether or not the transactions contemplated hereunder are
consummated or this Agreement is terminated, the Company will pay, or
reimburse the Underwriters on demand for, all reasonable costs and
expenses incident to the performance of the Company's obligations under
this Agreement, including all expenses incident to the authorization of
the Bonds and their issue and delivery by the Company, all expenses
incident to listing the Bonds on any stock exchange, any necessary stamp
taxes in connection with the foregoing, the reasonable fees and expenses
of the
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Company's counsel and accountants, the costs and expenses incident to the
preparation and filing under the Act of the Registration Statement
(including all exhibits and amendments thereto), the Prospectus and this
Agreement, all reasonable fees and disbursements (including reasonable
fees and disbursements of counsel) incurred by the Company or the
Underwriters in connection with the qualification of the Bonds for sale
under state securities laws and the preparation of Blue Sky Memoranda and
Legal Investment Surveys, the cost of furnishing to the Underwriters
copies of Blue Sky Memoranda and Legal Investment Surveys, the
Registration Statement and the Prospectus, and each amended or
supplemented Registration Statement or Prospectus and each Prospectus
prepared to permit compliance with Section 10(a)(3) of the Act and the
cost of preparing copies of this Agreement. The Company shall not,
however, be required to pay for any of the Representative's expenses or
those of any of the other Underwriters, other than as hereinabove set
forth or the costs of preparing copies of the legal opinion referred to in
subparagraph (e) of Section 5 hereof, the Underwriters' Questionnaires and
the Agreement Among Underwriters; provided, however, that, if this
Agreement shall not be consummated because it is (i) terminated by the
Representative pursuant to Section 5 or Section 6 hereof, (ii) terminated
pursuant to Section 3 hereof, or (iii) terminated by reason of any
failure, refusal or inability on the part of the Company to perform any
undertaking or satisfy any condition of this Agreement or to comply with
any of the terms hereof on its part to be performed, unless such failure,
refusal or inability be due to the default or omission of the
Underwriters, then and in any such case, the Company shall reimburse the
Underwriters (but not defaulting Underwriters in the event of termination
pursuant to Section 3 hereof) for all out-of-pocket expenses (including
reasonable fees and disbursements of counsel for the Underwriters)
reasonably incurred in connection with investigating, marketing and
proposing to market the Bonds or in contemplation of performing their
obligations hereunder, but the Company shall not in any event be liable to
any of the Underwriters for damages on account of loss of anticipated
profits or commissions from the sale by them of the Bonds.
(f) The Company will apply the proceeds from the sale of the
Bonds substantially as set forth under the caption "Use of Proceeds" in
the Prospectus.
(g) The Company will deliver to the Representative, as
promptly as practicable, a signed copy of the Registration Statement and
all amendments thereto
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including all exhibits filed therewith and signed consents, certificates
and opinions of accountants and of any other persons named in the
Registration Statement as having prepared, certified or reviewed any part
thereof, and will deliver to the Representative such number of unsigned
copies of the Registration Statement, without exhibits, and of all
amendments thereto, as the Representative may reasonably request. The
Company will deliver to or upon the order of the Representative, from time
to time, as many copies of the Prospectus (excluding Incorporated
Documents) as the Representative may reasonably request.
(h) The Company will make generally available to its security
holders and deliver to the Representative as soon as it is practicable to
do so, an earnings statement (as defined in Rule 158 under the Act), which
need not be audited, covering a period of at least twelve months beginning
not later than the first day of the month next succeeding the month in
which occurred the effective date of the Registration Statement (as such
effective date is defined in such Rule), which shall satisfy the
requirements of Section 11(a) of the Act.
(i) For a period of five years from the Closing Date, the
Company will deliver to the Representative and, upon request, to each of
the other Underwriters (i) as soon as available, a copy of each report of
the Company mailed to security holders or filed with the Commission and
(ii) from time to time such other information concerning the Company as
the Representative shall reasonably request. If at any time, the Company
shall have a majority-owned subsidiary or subsidiaries which is or are
"significant" within the meaning of Regulation S-X of the Commission, the
financial statements contained in the documents referred to in (i) shall
be furnished in consolidated form, if such consolidation is required under
such Regulation S-X, for the Company and such subsidiary or subsidiaries.
(j) During the period beginning on the date hereof and
continuing through the Closing Date, the Company will not offer, sell or
otherwise alienate, without the Representative's prior consent, any other
of its First Mortgage Bonds.
5. Conditions of Underwriters' Obligations. The obligations of the
Underwriters to purchase and pay for the Bonds, as provided herein, shall be
subject to the accuracy, as of the date hereof and as of the Closing Date (as if
made on the Closing Date), of the representations and warranties of the
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Company herein, to the accuracy of statements of Company officers made in
certificates delivered pursuant to the provisions hereof, to the performance by
the Company of its obligations hereunder and to the following additional
conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement, or order preventing or suspending the use of the
Prospectus, shall have been issued and shall remain in effect; no order of
the Commission directed to the adequacy or accuracy of any Incorporated
Document shall be in effect; and no proceedings for any such purpose shall
have been instituted or be pending or, to the knowledge of the Company or
the Representative, shall be contemplated or threatened by the Commission;
any request of the Commission for additional information (to be included
in the Registration Statement or the Prospectus or otherwise) shall have
been complied with to the reasonable satisfaction of Xxxx & Priest LLP,
counsel for the Underwriters; no amendment to the Registration Statement
or Prospectus shall have been filed hereafter to which the Representative
or Xxxx & Priest LLP shall have reasonably and promptly objected in
writing after having received reasonable notice and a copy thereof; there
shall be in full force and effect on the date of this Agreement
appropriate orders of The Public Service Commission of Delaware and the
State Corporation Commission of Virginia permitting the issuance and sale
of the Bonds and the transactions relating thereto substantially in
accordance with the terms and conditions set forth herein and in the
Prospectus; such orders shall contain no condition inconsistent with the
provisions hereof or unacceptable to the Representative and shall be
issued under circumstances which in the Representative's reasonable
judgment are appropriate for the protection of the Underwriters; and on or
prior to the Closing Date, neither of said orders shall have been
rescinded, modified or stayed, or the right of the Company to operate
thereunder restrained, or be subject to any litigation or proceeding
pending, or, to the knowledge of the Representative or the Company,
threatened.
(b) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, except as set
forth in or contemplated by the Prospectus, there shall not have been any
change in the capital stock, short-term debt or long-term debt of the
Company and the Subsidiaries taken as a whole, or any adverse change or
any development involving a prospective adverse change in the condition,
financial or otherwise, or in the earnings, business, net worth or results
of operations of
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the Company and the Subsidiaries taken as a whole, all or any of which, in
the Representative's reasonable judgment, materially impairs the
investment quality of the Bonds; and no Underwriter shall have disclosed
in writing to the Company on or prior to the Closing Date that the
Registration Statement or Prospectus contained an untrue statement of fact
which, in the opinion of Xxxx & Priest LLP, counsel for the Underwriters,
is material, or omits to state a fact which, in the opinion of such
counsel, is material and is required to be stated therein or is necessary
to make the statements therein, in light of circumstances then existing,
not misleading.
(c) The authorization and issuance of the Bonds, the
Registration Statement, the Prospectus and all corporate proceedings and
other legal matters incident thereto shall be satisfactory in all respects
to Xxxx & Priest LLP and the Company shall have furnished to Xxxx & Priest
LLP such documents as they may reasonably request to enable them to be
satisfied with respect to the matters referred to in this subparagraph and
to furnish to the Representative an opinion, dated as of the Closing Date,
as required by subparagraph (e) of this Section 5.
(d) On the Closing Date, the Representative shall have
received the favorable opinion of Xxxx X. Xxxxxxxx, General Counsel for
the Company, dated as of such date, satisfactory in form, scope and
substance to the Representative and to counsel for the Underwriters to the
effect that:
(i) the Company has been duly organized and is validly
existing as a corporation in good standing under the laws of
Delaware and Virginia with all corporate power and other authority
necessary to own or lease its properties and conduct its business as
described in the Registration Statement and Prospectus and to issue
and sell the Bonds; and each of the Subsidiaries has been duly
organized and is validly existing as a corporation in good standing
under the laws of its jurisdiction and is duly qualified to do
business as a foreign corporation and is in good standing under the
laws of any jurisdiction in which the conduct of its business or the
ownership or leasing of its properties requires such qualification,
with all corporate and other authority and franchises necessary to
own or lease its properties and conduct its business as described in
the Registration Statement and Prospectus;
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(ii) the Company is duly qualified to do business as a
foreign corporation in good standing in Maryland, New Jersey, Ohio
and Pennsylvania, being all of the jurisdictions in which the
conduct of its business or its ownership or leasing of properties
requires such qualification; and the Company owns all of the stock
of the Subsidiaries, free and clear of any lien, pledge or other
encumbrance;
(iii) except as otherwise set forth in the Prospectus,
and except with respect to the location of certain poles, wires, and
other facilities within public highways or over or under public or
navigable waters (the status of which does not in any case threaten
to affect materially the Company's ability to conduct its present
business), the Company has such valid franchises, certificates of
convenience and necessity, operating rights, licenses, permits,
consents, approvals, authorizations and/or orders of governmental
bodies, political subdivisions or regulatory authorities, free from
materially burdensome restrictions, as are necessary for the
acquisition, construction and ownership of the properties now owned
or leased by it and the maintenance and operation of the properties
now operated by it and the conduct of the business now carried on by
it as described in the Registration Statement and the Prospectus,
and to the best of the knowledge of such counsel, the Company is not
in default or violation of any such franchises, certificates of
convenience and necessity, operating rights, licenses, permits,
consents, approvals, authorizations, and/or orders of governmental
bodies, political subdivisions or regulatory authorities, to the
extent that would materially affect the conduct of such business,
and the Company is not, to any material extent, in violation of any
applicable Federal, state or other laws and regulations;
(iv) the Mortgage has been duly authorized, executed and
delivered and is a valid instrument legally binding upon the Company
and enforceable in accordance with its terms, except as remedies may
be limited by bankruptcy, insolvency or other laws of general
application affecting the enforcement of creditors' rights generally
or principles of equity;
(v) the Mortgage, including each supplement thereto, has
been duly recorded as a mortgage upon the property covered thereby
in such a manner as is
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necessary to maintain the lien thereof; and with respect to security
interests in personal property and fixtures covered by the Mortgage,
financing statements have been duly filed, to the extent required,
under the provisions of the Delaware, Maryland, New Jersey,
Pennsylvania and Virginia Uniform Commercial Codes (certain of which
contain requirements for the filing of continuation statements at
specified intervals in order to preserve the security);
(vi) substantially all the utility plant and real
property owned by the Company are adequately described in the
Mortgage so as to constitute the Mortgage a lien thereon as security
for the Bonds, subject to no liens, encumbrances, or rights of
others, other than those specified or referred to in the Prospectus
under the heading "Description of the New Bonds-Security";
(vii) the Bonds have been duly authorized and, when duly
executed manually or in facsimile by the proper officers of the
Company, authenticated by the Trustee and delivered by the Company,
and when payment therefor has been received by the Company, they
will have been validly issued and will be valid and binding
obligations of the Company enforceable in accordance with their
terms and entitled to the lien of, and benefits provided by, the
Mortgage, subject to the limitations set forth in paragraph (iv)
above;
(viii) the terms of the Bonds and the Mortgage conform
as to legal matters to the description thereof and the statements
concerning them in the Registration Statement and the Prospectus,
the summary of certain terms and provisions thereof appearing in the
Registration Statement and the Prospectus fairly presents the
information called for by the Act and the Rules and Regulations and
the Mortgage has been duly qualified under the Trust Indenture Act
of 1939, as amended;
(ix) the Delaware Public Service Commission and the
Virginia State Corporation Commission have issued orders (to be
identified by date and docket number) authorizing the issuance and
sale of the Bonds and authorizing generally the transactions
relating thereto (including permitting the Company to enter into
this Agreement and perform its obligations hereunder). Neither of
such orders contains any condition
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inconsistent with the provisions hereof nor, to the best knowledge
of such counsel, has either of such orders been rescinded, modified
or stayed, and no further action is required to be taken by, and no
further authorization, consent or approval is required to be
obtained from, any governmental authority having jurisdiction in
connection with the authorization, issuance and sale of the Bonds
(other than in connection with state securities or blue sky laws as
to which counsel need express no opinion);
(x) the statements in the Prospectus that are stated
therein to have been made on the authority of such counsel as an
expert have been reviewed by such counsel and, as to matters of law
and legal conclusions, are correct and fairly present the
information required to be shown;
(xi) such counsel does not know of any legal or
governmental proceedings required to be described in the
Registration Statement or the Prospectus which are not described as
required, or of any contracts or documents of the Company or any of
the Subsidiaries of the Company of a character required to be
described in the Registration Statement or Prospectus, incorporated
by reference into the Prospectus or filed as exhibits to the
Registration Statement by the Act or by the Rules and Regulations
which have not been described, incorporated by reference or filed as
required;
(xii) the performance of this Agreement and the
consummation of the transactions herein contemplated and the
fulfillment of the terms hereof will not result in a breach or
violation of any of the terms or provisions of, or constitute a
default under, the Restated Certificate and Articles of
Incorporation, as amended, or By-Laws, as amended, of the Company,
or any statute, the Mortgage, or any indenture, mortgage, deed of
trust, note or other agreement or instrument known to such counsel
to which the Company or any of the Subsidiaries is a party or by
which any of them is bound or to which any of their property is
subject, or any order, rule or regulation known to such counsel
applicable to the Company or to any of the Subsidiaries or any of
their property of any court or other governmental body;
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(xiii) this Agreement has been duly authorized, executed
and delivered by the Company and is valid and binding on the
Company, except that rights to indemnity hereunder may be limited
under securities laws; and
(xiv) the Registration Statement has become effective
under the Act, and, to the best of the knowledge of such counsel, no
stop order with respect thereto has been issued and is continuing,
no order directed to the adequacy or accuracy of any Incorporated
Document has been issued by the Commission and no proceeding for any
such purpose has been initiated or is pending or, to the best
knowledge of such counsel, contemplated by the Commission; at the
time the Registration Statement became effective, the Registration
Statement, and at the time the Prospectus Supplement was filed with
the Commission pursuant to Rule 424(b), the Prospectus, complied as
to form in all material respects with the requirements of the Act
and the Rules and Regulations, and each Incorporated Document, when
it and when any amendment thereto was filed with the Commission,
complied as to form in all material respects with the requirements
of the Exchange Act and the rules and regulations of the Commission
thereunder; and such counsel has no reason to believe that (i) the
Registration Statement, at the time the Registration Statement
became effective and at the Closing Date, contained or contains any
statement of a material fact or omitted or omits to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, or (ii) the Prospectus, at the
time the Prospectus was filed with the Commission pursuant to Rule
424(b) and at the Closing Date, contained or contains any untrue
statement of a material fact or omitted or omits to state any
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading, except that in each case such
counsel need express no opinion as to the financial statements and
other financial data included therein.
(e) On the Closing Date, the Representative shall have
received the favorable opinion of Xxxx & Priest LLP, counsel for the
Underwriters, dated as of such date, satisfactory in form, scope and
substance to the Representative with respect to the sufficiency of all
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corporate proceedings and other legal matters relating to the Bonds, the
form of the Registration Statement and the Prospectus, and as to the
execution and authorization of this Agreement and the transactions
contemplated hereby as the Representative may reasonably require, and the
Company shall have furnished to such counsel such documents as they may
have reasonably requested for the purpose of enabling them to pass upon
such matters. In rendering such opinions, Xxxx & Priest LLP may rely as to
matters governed by Delaware, Maryland, New Jersey, Ohio, Pennsylvania and
Virginia law upon the opinion of Xxxx X. Xxxxxxxx, General Counsel for the
Company, who may in turn rely upon the opinions of other counsel as to
certain legal conclusions affected by the laws of Maryland, New Jersey,
Ohio, Pennsylvania and Virginia.
(f) On the date hereof and at the Closing Date the
Representative shall have received letters of Coopers & Xxxxxxx LLP, dated
as of such dates, to the effect set forth in Schedule III annexed hereto
and with respect to such other matters as to which the Representative
shall have inquired.
(g) On the Closing Date the Representative shall have received
a certificate or certificates, dated as of such date, of the President or
a Vice President of the Company or the principal accounting officer of the
Company to the effect that, to the best of his or her knowledge based on a
reasonable investigation:
(i) the representations and warranties of the Company in
this Agreement are true and correct, as though made on and as of the
Closing Date, and the Company has complied with all the agreements
and satisfied all the conditions required by this Agreement to be
performed or satisfied by the Company on or prior to the Closing
Date;
(ii) he or she has examined the Registration Statement
and the Prospectus, and, in his or her opinion, the Registration
Statement, when it became effective and at all times subsequent
thereto up to and including the Closing Date, did not and does not
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, and the Prospectus, when the
Prospectus was filed with the Commission and at all times subsequent
thereto up to and including the Closing Date, did not
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and does not 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, in the light of the
circumstances under which they were made, not misleading, and, since
the effective date of the Registration Statement, there has occurred
no event required to be set forth in an amended or supplemented
Prospectus which had not been so set forth.
All the opinions, letters, certificates and documents mentioned
above or elsewhere in this Agreement will be in compliance with the provisions
hereof only if they are reasonably satisfactory to Xxxx & Priest LLP. The
Company will furnish the Representative with such conformed copies of such
opinions, letters, certificates and documents as the Representative may
reasonably request.
If any condition to the Underwriters' obligations hereunder to be
satisfied on or prior to the Closing Date is not so satisfied, the
Representative may terminate this Agreement without liability on the part of any
Underwriter or the Company, except for the expenses to be paid or reimbursed by
the Company pursuant to Section 4(e) and except for any liability under Section
7 hereof.
6. Termination of Agreement. (a) The Representative, by notice to
the Company, may terminate this Agreement at any time after the date of this
Agreement and on or prior to the Closing Date if during such period (i) trading
on the New York Stock Exchange or the American Stock Exchange shall have been
wholly suspended, or minimum or maximum prices for trading shall have been
fixed, or maximum ranges for prices for securities shall have been required, on
the New York Stock Exchange or the American Stock Exchange, by the New York
Stock Exchange or the American Stock Exchange or by order of the Commission or
any other governmental authority having jurisdiction, or trading of the
Company's securities on any exchange or in any over-the-counter market shall
have been suspended, or (ii) a banking moratorium shall have been declared by
Federal or New York authorities, or (iii) an outbreak of hostilities or an
escalation thereof, a declaration of war by Congress, another substantial
calamity or crisis or another event or occurrence of a similar character which,
in the Representative's reasonable judgment, makes it impracticable or
inadvisable to proceed with the completion of the sale of and payment for the
Bonds or to enforce contracts for the sale of the Bonds shall have occurred, or
(iv) the Company shall have sustained a substantial loss by fire, flood,
accident or other calamity which, in the Representative's
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reasonable judgment, renders it inadvisable to consummate the sale of the Bonds
to, and the delivery of the Bonds by, the Underwriters, regardless of whether or
not such loss shall have been insured. This Agreement may also be terminated at
any time after the date of this Agreement and on or prior to the Closing Date
if, in the reasonable judgment of the Representative, the subject matter of any
amendment or supplement to the Registration Statement or the Prospectus renders
it either inadvisable to proceed with such offering or inadvisable to proceed
with the delivery of the Bonds to be purchased hereunder.
(b) In the event of termination pursuant to this Section , the
Company shall not be under any liability to any Underwriter, except for the
expenses to be paid by it pursuant to the provisions of Section 4(e) and except
for any liability under Section 7, nor shall any Underwriter be under any
liability to the Company, except for any liability under Section 7.
(c) If the Representative elects to terminate this Agreement
as provided in this Section , the Company shall be notified promptly by the
Representative by telephone, confirmed in writing.
7. Indemnification. (a) The Company will indemnify and hold harmless
each Underwriter and each person, if any, who controls such Underwriter within
the meaning of the Act against any losses, claims, damages or liabilities, joint
or several, to which such Underwriter or such controlling person may become
subject, under the Act, the Exchange Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or allegedly untrue statement of any
material fact contained in the Registration Statement, any preliminary
prospectus, the Prospectus, 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, in the light of the circumstances under which they were made, not
misleading; and will reimburse each Underwriter and each such controlling person
for any legal or other expenses reasonably incurred by such Underwriter or such
controlling person in connection with investigation or defending any such loss,
claim, damage, liability or action as such expenses are incurred; provided,
however, that the Company will 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 allegedly untrue statement or omission or alleged omission
made in the Registration Statement, any preliminary prospectus, or the
Prospectus, or any amendment or supplement thereto, in reliance
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upon and in conformity with written information furnished to the Company by any
Underwriter specifically for use in the preparation thereof. This indemnity
agreement will be in addition to any liability which the Company may otherwise
have.
(b) Each Underwriter will indemnify and hold harmless the
Company, each of its directors, each of its officers who has signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of the Act, against any losses, claims, damages or liabilities,
joint or several, to which the Company or any such director, officer or
controlling person may become subject, under the Act, the Exchange Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or
allegedly untrue statement of any material fact contained in the Registration
Statement, any preliminary prospectus, or the Prospectus, or any amendment or
supplement thereto, or arise out of or based upon the omission or the alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, in each case to the extent, but only
to the extent, that such untrue statement or allegedly untrue statement or
omission or alleged omission was made in reliance upon and in conformity with
written information furnished to the Company by such Underwriter specifically
for use in the preparation thereof; and will reimburse the Company for any legal
or other expenses reasonably incurred by the Company or any such director,
officer or controlling person in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are incurred.
This indemnity agreement will be in addition to any liability which such
Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against an indemnifying party
under this Section , notify the indemnifying party 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
this Section . In case any such action is brought against any indemnified party,
and it notifies an indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate in, and, to the extent that
it may wish, jointly with any other indemnifying party, similarly notified,
(except in the circumstances set forth in clause (i) and (ii) of this sentence)
to assume the defense thereof, with counsel satisfactory to such indemnified
party, and
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after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party will not be
liable to such indemnified party under this Section for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation, unless, (i) the
employment of additional counsel has been authorized in writing by the
indemnifying party in connection with defending such action, or (ii)
representation of both the indemnifying party and the indemnified party by the
same counsel is inappropriate by applicable standards of professional conduct
for attorneys in the jurisdiction where suit is instituted due to actual or
potential conflicting interests between them (it being understood that the
indemnifying party shall not be liable for the expense of more than one separate
counsel (in addition to local counsel) representing the indemnified parties in
such action). 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 any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
proceeding.
(d) No indemnity by the Company hereunder shall apply in
respect of (i) any preliminary prospectus furnished to a person to whom any of
the Bonds are sold unless a copy of the Prospectus is furnished by an
Underwriter or securities dealer to such person at or prior to the furnishing of
the written confirmation of such sale or mailed to such person with such
confirmation or (ii) any preliminary prospectus or Prospectus used by an
Underwriter or securities dealer after the same has been superseded by an
amended or supplemented preliminary prospectus or Prospectus supplied by the
Company to the Representative for the use of the Underwriters and securities
dealers. As used in this Section 7(d), the terms "preliminary prospectus" and
"Prospectus" do not include any Incorporated Document.
(e) If the indemnification provided for in subparagraph (a) or
(b) above should not be available to an indemnified party in respect of any
losses, claims, damages, liabilities and expenses referred to therein, then the
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities and expenses in such proportion as
is appropriate to reflect the relative benefits received by the
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indemnifying party on the one hand and such indemnified party on the other from
the offering of the Bonds, and also the relative fault of the indemnifying party
on the one hand and such indemnified party on the other in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities and expenses, as well as any other relevant equitable
considerations. The relative benefits received by the Company and the
Underwriters shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the Company
bears to the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault of the Company and the Underwriters shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission to state a material fact
relates to information supplied by the Company or the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(f) The parties hereto agree that it would not be just and
equitable if contribution were to be determined by pro rata allocation (even if
the Underwriters were to be 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. The amount paid or payable by an indemnified
party as a result of the losses, claims, damages, liabilities and expenses
referred to above shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any action or claim (which shall be limited as provided in
subparagraph (c) above if the indemnifying party shall have assumed the defense
of any such action in accordance with the provisions thereof). No person guilty
of fraudulent misrepresentation shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
8. Representations and Indemnities to Survive. All representations
and warranties of the Company contained herein and in the certificate or
certificates delivered pursuant to Section 5(g) and the indemnity agreements
contained in Section 7 shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of any Underwriter or
controlling person, or by or on behalf of the Company or any officer, director
or controlling person, and shall survive delivery of and payment for the Bonds
and, in the case of the indemnity agreements contained in Section 7, any
termination of this Agreement.
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9. Notices. Except as otherwise provided herein, all communications
hereunder shall be in writing and if sent to the Underwriters shall be mailed,
delivered or transmitted by facsimile and confirmed to the Representative at the
address set forth in Schedule I hereto, or if sent to the Company shall be
mailed, delivered or transmitted by facsimile and confirmed to it, c/o Senior
Vice President, Treasurer and Chief Financial Officer, 000 Xxxx Xxxxxx, X.X. Xxx
000, Xxxxxxxxxx, Xxxxxxxx 00000. Any such address may be changed from time to
time by notice as aforesaid.
10. Parties. This Agreement shall inure to the benefit of and be
binding upon the Underwriters and the Company and their respective successors
and assigns. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person or corporation, other than the parties
hereto, their respective successors and assigns and the controlling persons,
officers and directors referred to in Section 7, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision herein
contained; this Agreement and all conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of the parties
hereto, their respective successors and assigns and said controlling persons,
officers and directors, and for the benefit of no other person or corporation.
No purchaser of any of the Bonds through or from any Underwriter shall be
construed a successor or assign by reason merely of such purchase.
11. Underwriters Not Agents of the Company. Nothing herein contained
shall constitute the Underwriters, or any of them, agents or representatives of
the Company, or authorize them to act for or on behalf of the Company in any
capacity.
12. Controlling Law. Although the place of performance of certain
obligations under this Agreement is stated to be outside of Delaware, it is the
express intention of the parties hereto that this Agreement shall be governed by
and construed in accordance with the laws of Delaware, without regard to choice
of law principles.
13. Effect of Agreement. It is the intent of the parties hereto
that, with respect to the offering and sale of the Bonds contemplated hereby,
the terms and conditions of this Agreement supersede those contained in the
Distribution Agreement, dated _____________, by and among the Company and
_________________________________________________________________ ______, as
agents.
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If the foregoing correctly sets forth the understanding between the
Company and the Underwriters, please so indicate in the space provided below for
that purpose, whereupon this letter shall constitute a binding agreement between
the Company and the Underwriters severally.
Very truly yours,
DELMARVA POWER & LIGHT COMPANY
By:_______________________________
Senior Vice President
ACCEPTED as of the date first
above written, as Underwriters
and as Representatives of the
other Underwriters named in
Schedule II.
[REPRESENTATIVES]
By:_______________________________
Title:
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SCHEDULE I
Underwriting Agreement dated
Registration Statement No.
Representatives and Address:
SECURITIES:
DESIGNATION: First Mortgage Bonds, Series _,
__% Bonds Due ______ __, 20__
PRINCIPAL AMOUNT: $___________
Supplemental Indenture dated as of October
1, 1994
DATE OF MATURITY: ______ __, 20__
INTEREST RATE: __% per annum, payable _______ 1
and __________ 1 of each year, commencing
_____________
PURCHASE PRICE: _____% of the principal amount
thereof, plus accrued interest, if any,
from ______ __, 199_, to the date of
payment and delivery
PUBLIC OFFERING PRICE: ___% of the principal
amount thereof, plus accrued interest, if
any, from ______ __, 199_ to the date of
payment and delivery
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REDEMPTION TERMS: redeemable on and after
______ 1, 20__ on any date prior to
maturity at the following general
redemption prices, plus accrued interest:
If redeemed during If redeemed
the General during the General
12 month period Redemption 12 month period Redemption
ending ___ Price ending ____ Price
___________ ______ ____________ _____
SINKING FUND: None
CLOSING DATE AND LOCATION:
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SCHEDULE II
Principal Amount
Underwriter of Bonds
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SCHEDULE III
(i) They are independent public accountants within the meaning of the Act
and the applicable published rules and regulations thereunder;
(ii) In their opinion, the consolidated financial statements of the
Company and subsidiary companies ("Companies") examined by them and incorporated
by reference in the Registration Statement comply as to form in all material
respects with the applicable accounting requirements of the Act and the Exchange
Act and the published rules and regulations thereunder;
(iii) On the basis of procedures performed specified by the American
Institute of Public Accountants for a review of interim financial information as
described in SAS No. 71 (but not an examination in accordance with generally
accepted auditing standards) on the unaudited interim consolidated financial
statements of the Company as set forth in the Company's Quarterly Reports on
Form 10-Q incorporated by reference in the Prospectus, if any, a reading of the
the latest available unaudited interim consolidated financial statements, if
any, of the Company subsequent to the financial statements incorporated by
reference in the Prospectus and the minutes of meetings of the Board of
Directors and stockholders of the Company and inquiries of officers and other
employees of the Company responsible for accounting matters and other specified
procedures, nothing has come to their attention which causes them to believe
that (A) the unaudited consolidated financial statements incorporated by
reference in the Prospectus, if any, do not comply as to form in all material
respects with the applicable accounting requirements of the Exchange Act as it
applies to Form 10-Q and the related published rules and regulations thereunder
or that any material modifications should be made to such unaudited consolidated
financial statements for them to be in conformity with generally accepted
accounting principles; (B) the unaudited interim consolidated financial
statements, if any, for periods subsequent to the financial statements
incorporated by reference in the Prospectus are not fairly stated on a basis
substantially consistent with that of the audited consolidated financial
statements; (C) at a specified date not more than three days prior to the date
of such letter, there was any change in the capital stock of the Companies or in
their
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long-term debt, any increase in their short-term debt or any decrease in their
consolidated net assets, in each case as compared with amounts shown in the most
recent unaudited interim consolidated balance sheet incorporated by reference in
the Prospectus; or (D) for the period from the date of the most recent audited
or unaudited consolidated financial statements incorporated by reference in the
Prospectus to a subsequent date not more than five days prior to the date of
such letter, there were any decreases, as compared with the corresponding period
in the preceding year, in consolidated operating revenues, operating income, net
income, earnings applicable to common stock and earnings per average share of
common stock of the Company; except in all instances for changes or decreases
which the Prospectus discloses have occurred or may occur or which (i) are
described in such letter and (ii) as so described, are determined by the
Representative in its discretion, not to be material; and
(iv) They have compared the dollar amounts (or percentages derived from
such dollar amounts), ratios and other financial information as agreed upon
contained in (A) the Prospectus, (B) the Company's latest Annual Report on Form
10-K incorporated by reference into the Prospectus, and (C) the Company's latest
Quarterly Report on Form 10-Q incorporated by reference into the Prospectus and
(D) the Company's Current Reports on Form 8-K incorporated by reference into the
Prospectus, (in each case to the extent that such dollar amounts, percentages,
ratios 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, ratios and other financial information to be
in agreement with such results except as otherwise specified in such letter.
