Exhibit 1(iv)
VIRGINIA ELECTRIC AND POWER COMPANY
First and Refunding Mortgage Bonds
Series _, ____%, Due __________
FORM OF UNDERWRITING AGREEMENT
[Date]
[Name of Underwriter]
as Representative for
the Several Underwriters
named in Schedule II hereto
[Address of Underwriter]
Ladies and Gentlemen:
The undersigned, Virginia Electric and Power Company (the Company), hereby
confirms its agreement with the several Underwriters named in Schedule II hereto
(the Agreement) with respect to the sale to the several Underwriters of certain
of its First and Refunding Mortgage Bonds (the Mortgage Bonds) specified in
Schedule I hereto (the Mortgage Bonds so specified being referred to herein as
the Bonds), and the public offering thereof by the several Underwriters, upon
the terms specified in Schedule I hereto.
1. Underwriters and Representative. The term "Underwriters" as used herein
shall be deemed to mean the several persons, firms or corporations (including
the Representative hereinafter mentioned) named in Schedule II hereto, and the
term "Representative" as used herein shall be deemed to mean the representative
to whom this Agreement is addressed, who by signing this Agreement represents
that it has been authorized by the other Underwriters to execute this Agreement
on their behalf and to act for them in the manner herein provided. If there
shall be only one person, firm or corporation named in Schedule II hereto, the
term "Underwriters" and the term "Representative" as used herein shall mean that
person, firm or corporation. All obligations of the Underwriters hereunder are
several and not joint. Any action under or in respect of this Agreement taken by
the Representative will be binding upon all the Underwriters.
2. Description of the Bonds. Schedule I specifies the aggregate principal
amount of the Bonds, the initial public offering price of the Bonds, the
purchase price to be paid by the Underwriters, and any concession from the
initial public offering price to be allowed to dealers or brokers, and sets
forth the date, time and manner of delivery of the Bonds and payment therefor.
Schedule I also specifies (to the extent not set forth in the Registration
Statement and Prospectus referred to below) the terms and provisions for the
purchase of such Bonds. The Bonds will be issued under the Company's Indenture
of Mortgage dated November 1, 1935 between the Company and The Chase Manhattan
Bank, as Trustee (the Trustee), as supplemented and modified to the date hereof
and as to be supplemented by a Supplemental Indenture substantially in the form
contained as an exhibit to the Registration Statement referred to below (the
Supplemental Indenture).
3. Representations and Warranties of the Company. The Company represents
and warrants to, and agrees with, the Underwriters that:
(a) A registration statement, No. 333-_______ on Form S-3 for the
registration of the Mortgage Bonds under the Securities Act of 1933, as amended
(the Securities Act), heretofore filed with the Securities and Exchange
Commission (the omission), a copy of which as so filed has been delivered to
you, has become effective. The registration statement, including all exhibits
thereto, as amended through the date hereof, is hereinafter referred to as the
"Registration Statement"; the prospectus relating to the Mortgage Bonds included
in the Registration Statement, which prospectus is now proposed to be
supplemented by a supplement relating to the Bonds to be filed with the
Commission under the Securities Act, as so supplemented, is hereinafter referred
to as the "Prospectus". As used herein, the terms "Registration Statement",
"prospectus" and "Prospectus" include all documents (including any Current
Report on Form 8-K) incorporated therein by reference, and shall include any
documents (including any Current Report on Form 8-K) filed after the date of
such Registration Statement, prospectus or Prospectus and incorporated therein
by reference from the date of filing of such incorporated documents
(collectively, the Incorporated Documents).
(b) No order suspending the effectiveness of the Registration
Statement or otherwise preventing or suspending the use of the Prospectus has
been issued by the Commission and is in effect and no proceedings for that
purpose are pending before or, to the knowledge of the Company, threatened by
the Commission. The Registration Statement and the Prospectus comply in all
material respects with the provisions of the Securities Act, the Securities
Exchange Act of 1934 (the Securities Exchange Act) and the Trust Indenture Act
of 1939, as amended (the Trust Indenture Act), and the rules, regulations and
releases of the Commission thereunder (the Rules and Regulations), and, on the
date hereof, neither the Registration Statement nor the Prospectus contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading,
and, on the Closing Date, the Registration Statement and the Prospectus
(including any amendments and supplements thereto) will conform in all respects
to the requirements of the Securities Act, the Trust Indenture Act and the Rules
and Regulations, and neither of such documents will include any untrue statement
of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading; provided, that the foregoing representations and
warranties in this Section (b) shall not apply to statements in or omissions
from the Registration Statement or the Prospectus made in reliance upon
information furnished herein or in writing to the Company by the Underwriters or
on the Underwriters' behalf for use in the Registration Statement or Prospectus;
and provided, further, that the foregoing representations and warranties are
given on the basis that any statement contained in an Incorporated Document
shall be deemed not to be contained in the Registration Statement or Prospectus
if the statement has been modified or superseded by any statement in a
subsequently filed Incorporated Document or in the Registration Statement or
Prospectus or in any amendment or supplement thereto.
(c) Deloitte & Touche LLP, who have examined certain of the Company's
financial statements filed with the Commission and incorporated by reference in
the Registration Statement, are independent public accountants as required by
the Securities Act and the rules and regulations of the Commission thereunder.
(d) Except as reflected in, or contemplated by, the Registration
Statement and Prospectus, since the respective most recent dates as of which
information is given in the Registration Statement and Prospectus, there has not
been any material adverse change in the condition of the Company, financial or
otherwise.
The Company has no material contingent financial obligation that is not
disclosed in each of the Registration Statement and Prospectus.
(e) The Company has taken all corporate action necessary to be taken
by it to authorize the execution by it of this Agreement and the performance by
it of all obligations on its part to be performed hereunder; and the
consummation of the transactions herein contemplated and the fulfillment of the
terms hereof will not result in a breach of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed of trust, or other
agreement or instrument to which the Company is now a party, or the charter of
the Company, as amended, or any order, rule or regulation applicable to the
Company of any federal or state regulatory board or body or administrative
agency having jurisdiction over the Company or over its property.
(f) The Bonds, upon issuance thereof, will conform in all respects to
the terms of the relevant order or orders of the State Corporation Commission of
Virginia (the Virginia Commission) now or hereafter in effect with respect to
the Bonds.
[(g) The Company has complied and will comply with all of the
provisions of Florida H.B. 1771, codified as Section 517.075 of the Florida
statutes, and all regulations promulgated thereunder related to issuers of
securities doing business with Cuba.]
4. Public Offering. On the basis of the representations and warranties
herein contained, but subject to the terms and conditions in this Agreement set
forth, the
Company agrees to sell to each of the several Underwriters, and each Underwriter
agrees, severally and not jointly, to purchase from the Company, at the price,
place and time hereinafter specified, the principal amount of the Bonds set
forth opposite the name of such Underwriter in Schedule II hereto. The several
Underwriters agree to make a public offering of their respective Bonds specified
in Schedule II hereto at the initial public offering price specified in Schedule
I hereto. It is understood that after such initial offering the several
Underwriters reserve the right to vary the offering price and further reserve
the right to withdraw, cancel or modify such offering without notice.
5. Time and Place of Closing. Delivery of the Bonds to, and payment
therefor by, the Representative for the accounts of the several Underwriters
shall be made at the time, place and date specified in Schedule I or such other
time, place and date as the Representative and the Company may agree upon in
writing, and subject to the provisions of Section 10 hereof. The hour and date
of such delivery and payment are herein called the "Closing Date". Unless
otherwise specified in Schedule I hereto, payment for the Bonds shall be made to
the Company [or its order by check or checks in New York Clearing House funds at
the Closing Date]. The Bonds shall be in the form of definitive fully registered
Bonds without coupons in such authorized denominations and registered in such
names as the Representative shall specify in writing not later than 12 Noon, New
York time, on the third business day prior to the Closing Date. For the purpose
of expediting the checking of such Bond certificates by the Representative, the
Company agrees to make the certificates available to the Representative for such
purpose not later than 12 Noon, New York time, on the last business day before
the Closing Date, at the place specified in Schedule I.
6. Covenants of the Company. The Company agrees that:
(a) The Company, at or prior to the Closing Date, will deliver to the
Representative conformed copies of the Registration Statement as originally
filed, including all exhibits, any related preliminary prospectus supplement,
the Prospectus and all amendments and supplements to each such document, in each
case as soon as available and in such quantities as are reasonably requested by
the Representative.
(b) The Company will pay all expenses in connection with (i) the
preparation and filing by it of the Registration Statement and Prospectus and
the printing of this Agreement and the Supplemental Indenture, (ii) the
preparation, issue and delivery of certificates for the Bonds, (iii) any fees
and expenses of the Trustee and (iv) the printing and delivery to the
Underwriters in reasonable quantities of copies of the Registration Statement
and the Prospectus (each as originally filed and as subsequently amended). The
Company also will pay all taxes, if any, except transfer taxes, on the issue of
the Bonds. In addition, the Company will pay the reasonable out of pocket fees
and disbursements of Underwriters' counsel, in connection with the qualification
of the Bonds under state securities or blue sky laws or investment laws (if and
to the extent such qualification is required by the Underwriters or the
Company).
(c) If, at any time when a prospectus relating to the Bonds is
required to be delivered under the Securities Act, any event occurs as a result
of which the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, or if it is necessary at any time to amend the
Prospectus to comply with the Securities Act, the Company promptly will (i)
notify the Representative to suspend solicitation of purchases of the Bonds and
(ii) at its expense, prepare and file with the Commission an amendment or
supplement which will correct such statement or omission or an amendment which
will effect such compliance [and (iii) at its expense, furnish to the
Representatives a reasonable quantity of the prospectus as so supplemented or
amended]. In case any Underwriter is required to deliver a prospectus in
connection with the sale of any Bonds after the expiration of the period
specified in the preceding sentence, the Company, upon the request of the
Representative, will furnish to the Representative, at the expense of such
Underwriter, a reasonable quantity of a supplemented or amended prospectus, or
supplements or amendments to the Prospectus, complying with Section 10(a) of the
Securities Act. During the period specified in the second sentence of this
paragraph, the Company will continue to prepare and file with the Commission on
a timely basis all documents or amendments required under the Securities
Exchange Act and the applicable rules and regulations of the Commission
thereunder; provided, that the Company shall not file such documents or
amendments without also furnishing copies thereof to the Representative and
Underwriters' Counsel.
(d) The Company will advise the Representative promptly of any
proposal to amend or supplement the Registration Statement or the Prospectus and
will afford the Representative a reasonable opportunity to comment on any such
proposed amendment or supplement; and the Company will also advise the
Representative promptly of the filing of any such amendment or Supplement [As
soon as the Company is advised thereof, it will advise the Representative of the
issuance of any stop order under the Securities Act with respect to the
Registration Statement or any part thereof, or] 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 use its best efforts promptly to do and perform
all things to be done and performed by it hereunder prior to the Closing Date
and to satisfy all conditions precedent required of it to the delivery by it of
the Bonds.
(g) The Company will furnish such proper information as may be
lawfully required and otherwise cooperate in qualifying the Bonds for offer and
sale under the securities or blue sky laws of such states as the Representative
may designate; provided, however, that the Company shall not be required in any
state to qualify as a foreign corporation, or to file a general consent to
service of process, or to submit to any requirements which it deems unduly
burdensome.
(h) Fees and disbursements Underwriters' outside Counsel (exclusive of
fees and disbursements of such counsel which are to be paid as set forth in
paragraph 6(b)), shall be paid by the Underwriters; provided, however, that if
this Agreement is terminated in accordance with the provisions of Sections 7 or
8 hereof, the Company shall reimburse the Representative for the account of the
Underwriters for the amount of such fees and disbursements.
7. Conditions of Underwriters' Obligations; Termination by the
Underwriters.
(a) The obligations of the Underwriters to purchase and pay for the
Bonds shall be subject to the following conditions:
(i) No stop order suspending the effectiveness of the Registration
Statement shall be in effect on the Closing Date and no proceedings for
that purpose shall be pending before, or to the knowledge of the Company
threatened by, the Commission on such date. The Representative shall have
received, prior to payment for the Bonds, a certificate dated the Closing
Date and signed by the Chairman of the Board, any Chief Executive Officer,
Chief Financial Officer, any President, any Executive Vice President, or
Senior Vice President of the Company to the effect that no such stop order
is in effect and that no proceedings for such purpose are pending before
or, to the knowledge of the Company, threatened by the Commission.
(ii) At the Closing Date an order or orders of the Virginia Commission
permitting the issuance and sale of the Bonds substantially in accordance
with the terms and conditions hereof shall be in full force and effect and
shall contain no provision unacceptable to the Representative or the
Company (but all provisions of such order or orders heretofore entered are
deemed acceptable to the Representative and the Company, and all provisions
of such order or orders hereafter entered shall be deemed acceptable to the
Representative and the Company unless within 24 hours after receiving a
copy of any such order either shall give notice to the other to the effect
that such order contains an unacceptable provision).
(iii) At the Closing Date the Representative shall receive, on behalf
of the several Underwriters, the opinions of counsel to the Company and
Underwriters' Counsel, substantially in the forms attached hereto as
Schedules III through V.
(iv) On the date of this Agreement and on the Closing Date, the
Representative shall have received from Deloitte & Touche LLP a letter
addressed to the Representative, dated the date of this Agreement and the
Closing Date, respectively, (A) confirming that they are independent public
accountants as required by the Securities Act; (B) stating in effect that,
in their opinion, the audited financial statements included in or
incorporated by reference in the Registration Statement and the Prospectus
and audited by them as stated in their report incorporated by reference in
the Registration Statement (the Audited Financial Statements), comply as to
form in all material respects with the applicable accounting requirements
adopted pursuant to the Securities Exchange Act; (C) stating, in effect,
that on the basis of a reading of the minutes of the meetings of the Board
of Directors of the Company and of committees of the Board since the end of
the period covered by the Audited Financial Statements, a reading of the
unaudited financial statements incorporated by reference in the Prospectus
(if any), of the unaudited statement of income for any interim period for
which information is included in the Prospectus under the caption "Selected
Financial Information" or any section updating such information, and of the
latest available unaudited financial statements of the Company covering a
period of twelve months ending after the end of the period covered by the
Audited Financial Statements (if any), and inquiries of officials of the
Company responsible for financial and accounting matters (which procedures
did not constitute an audit made in accordance with generally accepted
auditing standards), nothing came to their attention that caused them to
believe that such unaudited financial statements incorporated by reference
in the Prospectus are not in conformity with generally accepted accounting
principles applied on a basis substantially consistent with that of the
Audited Financial Statements; and (D) stating, in effect, that on the basis
of more limited procedures than those set forth in the foregoing clause
(C), consisting merely of the reading of the minutes referred to in said
clause and inquiries of officials of the Company responsible for financial
and accounting matters, nothing came to their attention at a date not more
than five business days prior to the date of such letter that caused them
to believe that (1) at such date there was any decrease in common
stockholder's equity or any increase in funded debt of the Company or any
decrease in net assets as compared with the amounts shown in the balance
sheet included in the most recent financial statements incorporated by
reference, or (2) for the period from the date of the most recent unaudited
financial statements included or incorporated by reference in the
Registration Statement and the Prospectus to a date not more than five
business days prior to the date of such letter there were any decreases, as
compared with the corresponding period in the preceding year, in the
operating revenues, operating income or net income, except (with respect to
(1) or (2)) in all instances for changes or decreases that the Registration
Statement discloses have occurred or may occur; provided, however, that
said letters may
vary from the requirements specified in clause (D) hereof in such manner as
the Representative in its sole discretion may deem to be acceptable. Said
letters shall also state that the dollar amounts, percentages and other
financial information (in each case to the extent that such dollar amounts,
percentages and other financial information, either directly or by analysis
or computation, are derived from the general accounting records of the
Company) that appear (1) in the Prospectus under the captions "Selected
Financial Information" and "Other Selected Data" and under any caption
contained in a supplement to the Prospectus updating such dollar amounts,
percentages and other financial information (limited to total assets and
utility plant expenditures), (2) in the Company's most recent Annual Report
on Form 10-K under the caption "Selected Financial Data" or (3) in the
Registration Statement under the caption "Ratio of Earnings to Fixed
Charges" have been compared with the general accounting records of the
Company and such dollar amounts, percentages and financial information have
been found to be in agreement with the accounting records of the Company
and the computations have been found to be arithmetically correct. Each
such letter shall relate to the Registration Statement and Prospectus as
amended or supplemented to the date of each such letter.
(v) Subsequent to the execution of this Agreement and prior to the
Closing Date, (A) except as reflected in, or contemplated by, the
Registration Statement and the Prospectus, there shall not have occurred
(1) any change in the Mortgage Bonds of the Company (other than a decrease
in the aggregate principal amount thereof outstanding), (2) any material
adverse change in the general affairs, financial condition or earnings of
the Company (whether or not arising in the ordinary course of business) or
(3) any material transaction entered into by the Company other than a
transaction in the ordinary course of business, the effect of which in each
such case in the judgment of the Representative is so material and so
adverse that it makes it inadvisable to proceed with the public offering or
delivery of the Bonds on the terms and in the manner contemplated in the
Prospectus and this Agreement, or (B) there shall not have occurred (1) a
downgrading in the rating accorded the Company's Mortgage Bonds by any
"nationally recognized statistical rating organization" (as that term is
defined by the Commission for purposes of Rule 436(g)(2) under the
Securities Act), (2) any general suspension of trading in securities on the
New York Stock Exchange or any limitation on prices for such trading or any
restrictions on the distribution of securities established by the New York
Stock Exchange or by the Commission or by any federal or state agency or by
the decision of any court, (3) a banking moratorium declared either by
federal or New York State authorities or (4) any outbreak or escalation of
major hostilities in which the 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, the effect of which outbreak, escalation, declaration, calamity
or crisis, in the reasonable judgment of the Representative, makes it
impracticable or inadvisable to proceed with the public offering or
delivery of the Bonds on the terms and in the manner contemplated in the
Prospectus and in this Agreement.
(vi) On the Closing Date, the representations and warranties of the
Company in this Agreement shall be true and correct as if made on and as of
such date, and the Company shall have performed all obligations and
satisfied all conditions required of it under this Agreement; and, at the
Closing Date, the Representative shall have received a certificate to such
effect signed by the President or any Vice President of the Company.
(vii) All legal proceedings to be taken in connection with the
issuance and sale of the Bonds shall have been satisfactory in form and
substance to Underwriters' Counsel.
(b) In case any of the conditions specified above in paragraph 7(a)
shall not have been fulfilled, this Agreement may be terminated by the
Representative upon mailing or delivering written notice thereof to the Company;
provided, however, that in case the conditions specified in subparagraphs
7(a)(v) and (vi) shall not have been fulfilled, this Agreement may not be so
terminated by the Representative unless Underwriters who have agreed to purchase
in the aggregate greater than 50% or more of the aggregate principal amount of
the Bonds shall have consented to such termination and the aforesaid notice
shall so state. Any such termination shall be without liability of any party to
any other party except as otherwise provided in Section 9 and Sections 6(b),
6(i) and 7(c) hereof.
(c) If this Agreement shall be terminated by the Representative
pursuant to paragraph (b) above or because of any failure or refusal on the part
of the Company to comply with the terms or to fulfill any of the conditions of
this Agreement, or if for any reason the Company shall be unable to perform its
obligations under this Agreement, then in any such case, the Company will
reimburse the Underwriters, severally, for all out-of-pocket expenses (in
addition to the fees and disbursements of their counsel as provided in 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 Bonds shall be subject to the conditions set forth in the
first sentence of subparagraph 7(a)(i) and in subparagraph 7(a)(ii). In case
said conditions shall not have been fulfilled, this Agreement may be terminated
by the Company by mailing or delivering written notice thereof to the
Representative. Any such termination shall be without liability of any party to
any other party except as otherwise provided in paragraphs 6(b), 6(i), 9 and
10(c) hereof.
9. Indemnification.
(a) The Company agrees to indemnify and hold harmless each Underwriter
and each person who controls any Underwriter within the meaning of Section 15 of
the Securities Act or Section 20(a) of the Securities Exchange Act, against any
and all losses,
claims, damages or liabilities, joint or several, to which they or any of them
may become subject under the Securities Act, the Securities Exchange Act, or any
other statute or common law and to reimburse each such Underwriter and
controlling person for any legal or other expenses (including, to the extent
hereinafter provided, reasonable counsel fees) incurred by them in connection
with investigating any such losses, claims, damages, or liabilities, or in
connection with defending any actions, insofar as such losses, claims, damages,
liabilities, expenses or actions arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus, or in either such document as amended
or supplemented (if any amendments or supplements thereto shall have been
furnished), or any Preliminary Prospectus (if and when used prior to the
effective date of the Registration Statement), or the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided that the
foregoing agreement, insofar as it relates to any Preliminary Prospectus, shall
not inure to the benefit of any Underwriter (or to the benefit of any person who
controls such Underwriter) on account of any losses, claims, damages or
liabilities arising out of the sale of any of the Bonds by such Underwriter to
any person if it shall be established that a copy of the Prospectus, excluding
any documents incorporated by reference (as supplemented or amended, if the
Company shall have made any supplements or amendments which have been furnished
to the Representative), shall not have been sent or given by or on behalf of
such Underwriter to such person at or prior to the written confirmation of the
sale to such person in any case where such delivery is required by the
Securities Act, if the misstatement or omission leading to such loss, claim,
damage or liability was corrected in the Prospectus (excluding any documents
incorporated by reference) as amended or supplemented, and such correction would
have cured the defect giving rise to such loss, claim, damage, or liability; and
provided further, however, that the indemnity agreement contained in this
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 paragraph (a) and the representations and
warranties of the Company contained in Section 3 hereof shall remain operative
and in full force and effect, regardless of any investigation made by or on
behalf of any Underwriter or any such controlling person, and shall survive the
delivery of the Bonds.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its officers and directors, each other
Underwriter, and each person who controls any thereof within the meaning of
Section 15 of the Securities Act or Section 20(a) of the Securities Exchange
Act, against any and all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject under the Securities
Act, the Securities Exchange Act, or any other statute or common law and to
reimburse each of them for any legal or other expenses (including, to the extent
hereinafter provided, reasonable counsel fees) incurred by them in connection
with
investigating any such losses, claims, damages or liabilities or in connection
with defending any actions, insofar as such losses, claims, damages,
liabilities, expenses or actions arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus, or in either such document as amended
or supplemented (if any amendments or supplements thereto shall have been
furnished), or any Preliminary Prospectus (if and when used prior to the
effective date of the Registration Statement), or the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, if such statement or
omission was made in reliance upon information furnished herein or in writing to
the Company by or on behalf of such Underwriter for use in the Registration
Statement or the Prospectus or any amendment or supplement to either thereof, or
any Preliminary Prospectus. The indemnity agreement of the respective
Underwriters contained in this 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 other Underwriter or any such controlling person, and shall
survive the delivery of the Bonds.
(c) The Company and each of the Underwriters agrees that, upon the
receipt of notice of the commencement of any action against the Company or any
of its officers or directors, or any person controlling the Company, or against
such Underwriter or controlling person as aforesaid, in respect of which
indemnity may be sought on account of any indemnity agreement contained herein,
it will promptly give written notice of the commencement thereof to the party or
parties against whom indemnity shall be sought hereunder, but the omission so to
notify such indemnifying party or parties of any such action shall not relieve
such indemnifying party or parties from any liability which it or they may have
to the indemnified party otherwise than on account of such indemnity agreement.
In case such notice of any such action shall be so given, such indemnifying
party shall be entitled to participate at its own expense in the defense or, if
it so elects, to assume (in conjunction with any other indemnifying parties) the
defense of such action, in which event such defense shall be conducted by
counsel chosen by such indemnifying party (or parties) and satisfactory to the
indemnified party or parties who shall be defendant or defendants in such
action, and such defendant or defendants shall bear the fees and expenses of any
additional outside counsel retained by them; provided that, if the defendants in
any such action include both the indemnified party and the indemnifying party
(or parties) and the indemnified party shall have reasonably concluded that
there may be legal defenses available to it and/or other indemnified parties
which are different from or additional to those available to the indemnifying
party (or parties), the indemnified party shall have the right to select
separate counsel to assert such legal defenses and to participate otherwise in
the defense of such action on behalf of such indemnified party. The indemnifying
party shall bear the reasonable fees and expenses of 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, 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.
(d) If the indemnification provided for in this Section 9 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 contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative fault of the Company, on the one hand, and
of you, on the other, in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations, including
relative benefit. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact required to be
stated therein or necessary in order to make the statements therein not
misleading relates to information supplied by the Company on the one hand or by
you on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and you agree that it would not be just and equitable if
contribution pursuant to this 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.
10. Termination by the Company. If any one or more of the Underwriters
shall fail or refuse to purchase the Bonds which it or they have agreed to
purchase hereunder, and the aggregate principal amount of the Bonds which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
is not more than one-tenth of the aggregate principal amount of the Bonds, the
other Underwriters shall be obligated severally in the proportions which the
principal amount of the Bonds set forth opposite their respective names in
Schedule II bears to the aggregate principal amount of the Bonds, or in such
other proportions as the Underwriters may specify, to purchase the Bonds which
such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase. If any Underwriter or Underwriters shall so fail or refuse to purchase
Bonds and the aggregate principal amount of the Bonds with respect to which such
default occurs is more than one-tenth of the aggregate principal amount of the
Bonds and
arrangements satisfactory to the Underwriters and the Company for the purchase
of such Bonds are not made within 36 hours after such default, this Agreement
will terminate without liability on the part of any non-defaulting Underwriter
(except as provided in 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 Representative or the Company shall have the right to
postpone the Closing Date, but in no event for longer than seven days, in order
that the required changes, if any, in the Registration Statement and in the
Prospectus or in any other documents or arrangements may be effected. Any action
taken under this Section 10 shall not relieve any defaulting Underwriter from
liability in respect of any default of such Underwriter under this Agreement.
11. Representations, Warranties and Agreements to Survive Delivery. All
representations, warranties and agreements contained in this Agreement or
contained in certificates of officers of the Company submitted pursuant hereto
shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of any Underwriter or any controlling person
of any Underwriter, or by or on behalf of the Company, and shall survive
delivery of the Bonds.
12. Miscellaneous. The validity and interpretation of this Agreement shall
be governed by the laws of the State of New York. This Agreement shall inure to
the benefit of the Company, the Underwriters and, with respect to the provisions
of Section 9 hereof, each controlling person and each officer and director of
the Company referred to in said Section 9, and their respective successors,
assigns, executors and administrators. Nothing in this Agreement is intended or
shall be construed to give to any other person, firm or corporation any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. The term "successors" as used in this Agreement
shall not include any purchaser, as such, of any of the Bonds from any of the
several Underwriters.
13. Notices. All communications hereunder shall be in writing and if to the
Underwriters shall be mailed, telexed, telecopied or delivered to the
Representative at the address set forth on Schedule I hereto, or if to the
Company shall be mailed, telexed, telecopied or delivered to it, attention of
Treasurer, Virginia Electric and Power Company, 000 X. Xxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxx 00000.
Please sign and return to us a counterpart of this letter, whereupon this
letter will become a binding agreement between the Company and the several
Underwriters in accordance with its terms.
VIRGINIA ELECTRIC AND POWER COMPANY
By: ___________________________
Title: ___________________________
The foregoing agreement is hereby confirmed and accepted, as of the date
first above written.
[Name of Underwriter]
By:________________________________
Title:
Acting individually and on
behalf of the other several
Underwriters named in
Schedule II hereto.
SCHEDULE I
Title of Bonds: First and Refunding Mortgage Bonds of 199_, Series _, ____ %,
due[date]
Aggregate Principal Amount: $_____________
Initial Price to Public: % of the principal amount of the Bonds plus accrued
interest, if any, from the date of issuance
Initial Purchase Price to be paid by Underwriters: _____% of the principal
amount of the Bonds. Specified funds for payment of purchase price (N.Y.
Clearing House Funds unless otherwise specified).
Time of Delivery: [Closing Date and time]
Closing Location:
The Bonds will be available for inspection by the Representative at:
Address for Notices to the Underwriters:
SCHEDULE II
Principal Amount
Underwriter of Bonds to be Purchased
SCHEDULE III
PROPOSED FORM OF OPINION
OF
[UNDERWRITER'S COUNSEL
Re: VIRGINIA ELECTRIC AND POWER COMPANY First and Refunding
Mortgage Bonds of 199_ Series _, ____%, due [date]
[Closing Date]
[name and address of
Representative]
Dear Sirs:
We have acted as counsel for the several Underwriters described below in
connection with arrangements for the issuance by Virginia Electric and Power
Company (the Company) of $____________ aggregate principal amount of its First
and Refunding Mortgage Bonds of 200_, Series _, ____% due [date] (the Bonds),
the terms of which are specified in Schedule I of the Underwriting Agreement
referred to below and in the Prospectus referred to therein, under and pursuant
to an Indenture of Mortgage of the Company, dated November 1, 1935, as
supplemented and modified by eighty-six supplemental indentures (said Indenture
of Mortgage as so supplemented and modified being hereinafter called the
Mortgage), under which The Chase Manhattan Bank, is now Trustee, and the
purchase of the Bonds by the several Underwriters pursuant to the Underwriting
Agreement dated [date] between you, acting individually and as Representative of
the several Underwriters named in Schedule II thereto, and the Company (the
Underwriting Agreement). Unless otherwise defined herein, capitalized terms used
herein shall have the meanings set forth in the Underwriting Agreement.
We have examined originals, or copies certified to our satisfaction, of
such corporate records of the Company, indentures, agreements and other
instruments, certificates of public officials, certificates of officers and
representatives of the Company and of the Trustee, and other documents, as we
have deemed it necessary to require as a basis for the opinions hereinafter
expressed. As to various questions of fact material to such opinions, we have,
when relevant facts were not independently established, relied upon
certifications by officers of the Company, the Trustee and other appropriate
persons and statements contained in the Registration Statement. All legal
proceedings taken as of the date hereof in connection with the issuance and sale
of the Bonds have been satisfactory in form and substance to us. In addition, we
attended the closing held today at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, at which
the Company delivered to the Representative, for the accounts of the several
Underwriters, certificates for the Bonds, in
accordance with the Underwriting Agreement, against payment therefor.
Based upon the foregoing, and having regard to legal considerations which
we deem relevant, we are of the opinion that:
A. The Company is a corporation duly incorporated and existing under the
laws of Virginia and is duly qualified as a foreign corporation in West Virginia
and North Carolina, and has corporate power to transact its business as
described in the Prospectus.
B. The Underwriting Agreement has been duly authorized by all necessary
corporate action and has been duly executed and delivered by the Company, and
constitutes a valid obligation of the Company.
C. The Registration Statement has become effective and remains in effect
at this date, and the Prospectus may lawfully be used for the purposes specified
in the Securities Act in connection with the offer for sale and the sale of the
Bonds in the manner therein specified.
The Registration Statement and the Prospectus (except the financial
statements and other financial or statistical information included or
incorporated by reference therein, as to which we express no opinion) appear on
their face to be appropriately responsive in all material respects to the
requirements of the Securities Act and the Trust Indenture Act, and to the
applicable rules and regulations of the Commission thereunder.
We express no opinion with reference to the statements under "Security and
Priority" under the caption DESCRIPTION OF THE BONDS in the Prospectus for the
reasons indicated in the concluding paragraph of this opinion; but except as
aforesaid, and subject to the concluding paragraph of this opinion, we are of
the opinion that the statements under DESCRIPTION OF THE BONDS are accurate and
do not omit any material fact required to be stated therein or necessary to make
such statements not misleading. As to other matters, we have not undertaken to
determine independently the accuracy or completeness of the statements contained
or incorporated by reference in the Registration Statement or in the Prospectus.
We have, however, participated in conferences with counsel for and
representatives of the Company in connection with the preparation of the
Registration Statement and the Prospectus, and we have reviewed all documents
incorporated by reference in the Prospectus through the date hereof pursuant to
the requirements of Form S-3 (the "Incorporated Documents") and such of the
corporate records of the Company as we deemed advisable. None of the foregoing
disclosed to us any information which gives us reason to believe that the
Registration Statement or the Prospectus (except the financial statements and
other financial or statistical information included or incorporated by reference
therein, as to which we express no opinion) contained on the date the
Registration Statement became effective, or now contains, any untrue statement
of a material fact or omitted on said date or now omits to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading. The foregoing is made on the basis that any statement contained in
an Incorporated Document shall be deemed not to be contained in the
Registration Statement or Prospectus if the statement has been modified or
superseded by any statement in a subsequently filed Incorporated Document or in
the Registration Statement or Prospectus.
D. An appropriate order of the Virginia Commission with respect to the
issue and sale of the Bonds on the terms and conditions set forth in the
Underwriting Agreement has been issued, and said order remains in effect at this
date and constitutes valid and sufficient authorization for the sale of the
Bonds as contemplated by the Underwriting Agreement. We understand said order
does not contain any provision unacceptable to the Representative under the
Underwriting Agreement. No approval or consent by any public regulatory body,
other than such order and notification of effectiveness by the Commission, is
legally required in connection with the issue and sale of the Bonds as
contemplated by the Underwriting Agreement (except compliance with the
provisions of securities or blue sky laws of certain states in connection with
the sale of the Bonds in such states) and the carrying out of the provisions of
the Underwriting Agreement.
E. The Mortgage has been duly authorized by all necessary corporate action
and has been duly executed and delivered, and conforms to the statements with
respect thereto contained in the Registration Statement and the Prospectus; the
Mortgage, so far as it relates to properties in Virginia, North Carolina and
West Virginia, subject, as to real properties acquired after the admission of
the Eighty-Sixth Supplemental Indenture to recordation, to due and prompt
recordation of the Eighty-Sixth Supplemental Indenture in all the recording
offices within the jurisdiction of which such properties are located before any
sale of any such properties, and subject, as to the mortgaged personal
properties in West Virginia, to due and prompt filing of the Eighty-Sixth
Supplemental Indenture in the office of the Secretary of State of West Virginia,
constitutes a valid mortgage legally effective to create a lien (as to the
ranking of which reference is made to the below-mentioned opinions of Messrs.
McGuire, Woods, Battle & Xxxxxx and Messrs. Xxxxxxx & Xxxxx, including the
statements made in the Prospectus on their authority) for the security of the
Bonds (pari passu with all other bonds of the same or other series that are or
may hereafter be issued under the Mortgage) upon the interest of the Company in
the property, including franchises, now owned by the Company, except as
otherwise provided in the Mortgage as to specific property or specific classes
of property; the Mortgage contains customary provisions for the enforcement of
the security provided for therein, certain of which may be limited by the laws
of Virginia, West Virginia or North Carolina (but such laws do not, in our
opinion, make inadequate the remedies necessary for the realization of the
benefits of such security) and, as to nuclear facilities, by the Atomic Energy
Act of 1954, as amended, and regulations thereunder, and may also be limited or
rendered unavailable by bankruptcy, moratorium and similar laws from time to
time in force or general principles of equity. We express no opinion as to the
validity or enforceability of any covenant to pay interest on defaulted
interest.
The Mortgage has been duly qualified under the Trust Indenture Act.
F. The Bonds conform to their description in the Underwriting Agreement and
to the statements with respect thereto contained in the Registration Statement
and the Prospectus, and have been duly authorized and are duly issued under the
Mortgage and entitled to the benefits and security thereof and are valid,
binding and legal obligations of the Company according to their tenor and effect
(subject, as to enforceability, to bankruptcy, moratorium and similar laws from
time to time in force or general principles of equity). We have made no
examination of the Company's title to property purported to be owned by it, the
description of such property contained in the Mortgage, the validity and
sufficiency of the franchises under which the Company operates, the ranking of
the lien created by the Mortgage, the absence of liens or encumbrances on
property of the Company other than the lien of the Mortgage and the permitted
liens referred to therein, the due recordation prior to the date hereof of the
original Indenture of Mortgage and the first eighty-_____ supplemental
indentures, the form (for purposes of recording) of the Mortgage, or the due
filing prior to the date hereof of a financing statement or any other instrument
to protect the lien of the Mortgage upon personal property in West Virginia. We
express no opinion on such matters and, to the extent that the opinions herein
expressed involve such matters, we have relied upon the opinion addressed to you
by Messrs. McGuire, Woods, Battle & Xxxxxx of Richmond, Virginia, and Charlotte,
North Carolina, and Messrs. Xxxxxxx & Xxxxx of Charleston, West Virginia, each
dated the date hereof (including the statements made in the Prospectus on their
authority), which opinions are satisfactory in scope and form to us, and upon
which opinions we believe you and we may properly rely. Likewise, we have relied
upon the opinions of such counsel as to all matters of West Virginia and North
Carolina law.
Very truly yours,
[UNDERWRITER'S COUNSEL]
SCHEDULE IV
PROPOSED FORM OF OPINION
OF
MCGUIRE, WOODS, BATTLE & XXXXXX LLP
One Xxxxx Center
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Re: VIRGINIA ELECTRIC AND POWER COMPANY
First and Refunding Mortgage Bonds of 199_
Series _, ____%, due [date]
[Closing Date]
[name and address of
Representative]
Dear Sirs:
We have acted as counsel for Virginia Electric and Power Company (the
Company) in connection with arrangements for the issuance by the Company of
$____________ aggregate principal amount of its First and Refunding Mortgage
Bonds of 200_, Series _, ____%, due [date] (the Bonds) the terms of which are
specified in Schedule I of the Underwriting Agreement referred to below and in
the Prospectus referred to therein, under and pursuant to an Indenture of
Mortgage of the Company, dated November 1, 1935, as supplemented and modified by
eighty-six supplemental indentures (such Indenture of Mortgage as so
supplemented and modified being hereinafter called the Mortgage), under which
The Chase Manhattan Bank is now Trustee, and the purchase of the Bonds by the
several Underwriters pursuant to the Underwriting Agreement dated [date] between
you, acting individually and as Representative of the several Underwriters named
in Schedule II thereto, and the Company (the Underwriting Agreement). Unless
otherwise defined herein, capitalized terms used herein shall have the meanings
set forth in the Underwriting Agreement.
We have examined originals, or copies certified to our satisfaction, of
such corporate records of the Company, indentures, agreements and other
instruments, certificates of public officials, certificates of officers and
representatives of the Company and of the Trustee, and other documents, as we
have deemed it necessary to require as a basis for the opinions hereinafter
expressed. As to various questions of fact material to such opinions, we have,
when relevant facts were not independently established, relied upon
certifications by officers of the Company, the Trustee and other appropriate
persons and statements contained in the Registration Statement. All legal
proceedings taken as of
the date hereof in connection with the transactions contemplated by the
Underwriting Agreement have been satisfactory to us.
In regard to the title of the Company to its properties, we have made no
independent investigation of original records but our opinion is based (a) with
respect to land and rights of way for electric lines of 69,000 volts or more,
solely on reports and opinions by counsel in whom we have confidence and (b)
with respect to rights of way for electric lines of less than 69,000 volts and
various matters of fact in regard to all other properties, solely on information
from officers of the Company.
On this basis, we are of the opinion that:
1. The Company is a corporation duly organized and existing under the laws
of Virginia and the Company is duly qualified as a foreign corporation in West
Virginia and North Carolina. Neither the nature of the Company's business nor
the properties it owns or holds under lease makes necessary qualification as a
foreign corporation in any state where it is not now so qualified, and the
Company has corporate power to conduct its business and to issue the Bonds.
2. All requisite corporate and governmental authorizations have been given
for the issuance of the Bonds and the sale of the Bonds under the Underwriting
Agreement.
3. The Mortgage has been duly authorized, executed and delivered and so far
as it relates to properties in North Carolina and Virginia is valid and binding
except as stated below, and constitutes a valid lien to the extent that it
purports to be one for the benefit of the holders of the bonds issued thereunder
(except that the lien may be defeated as to real property acquired after
recordation of any latest supplemental indenture by its sale before recordation
of a further supplemental indenture and our opinion, so far as relating to the
lien on certain properties now owned, is accordingly subject to recordation of
the Eighty-Sixth Supplemental Indenture and except that the lien as to personal
property of the Company held by bailees may be defeated). The Mortgage contains
customary provisions for the enforcement of the security provided for therein,
certain of which may be limited by the laws of Virginia, West Virginia or North
Carolina (but such laws do not, in our opinion, make inadequate the remedies
necessary for the realization of the benefits of such security) and, as to
nuclear facilities, by the Atomic Energy Act of 1954, as amended, and
regulations thereunder, and may also be limited or rendered unavailable by
bankruptcy, moratorium and similar laws from time to time in force. We express
no opinion as to the validity or enforceability of any covenant to pay interest
on defaulted interest.
4. All the Bonds have been duly executed, authenticated and delivered and
are valid and binding obligations of the Company, enforceable in accordance with
their terms (subject, as to enforceability, to applicable bankruptcy, moratorium
and similar laws from time to time in force or general principles of equity).
5. The Underwriting Agreement has been duly authorized, executed and
delivered by the Company and is a valid obligation of the Company.
6. The Registration Statement with respect to the Bonds filed pursuant to
the Securities Act of 1933, as amended (the Securities Act), has become
effective and remains in effect at this date, and the Prospectus may lawfully be
used for the purposes specified in the Securities Act in connection with the
offer for sale and the sale of the Bonds in the manner therein specified.
The statements in regard to our firm made under the caption EXPERTS in the
Prospectus are correct, and we are of the opinion that, so far as governed by
the laws of the United States, North Carolina or Virginia, the legal conclusions
relating to franchises, title to properties, limitations upon the issuance of
bonds and preferred stock in the Company's Annual Report on Form 10-K
incorporated in the Prospectus by reference and the description of the Bonds
contained in the Prospectus under DESCRIPTION OF THE BONDS are substantially
accurate and fair, including the statements as to North Carolina and Virginia
titles and defects therein and franchises and permits. As to the statistical
statements in the Registration Statement (which includes the documents
incorporated therein by reference), we have relied solely on the officers of the
Company. As to other matters of fact, we have consulted with officers and other
employees of the Company to inform them of the disclosure requirements of the
Securities Act, and facilitated the assembly of relevant data. We have examined
various reports, records, contracts and other documents of the Company and
orders and instruments of public officials, which our investigation led us to
deem pertinent. In addition, we attended the due diligence meetings with
representatives of the Company and the closing held today at which the Company
satisfied the conditions contained in Paragraph 7 of the Underwriting Agreement.
We have not, however, undertaken to make any independent review of the other
records of the Company. We accordingly assume no responsibility for the accuracy
or completeness of the statements made in the Registration Statement except as
stated above in regard to the aforesaid captions. But such consultation,
examination and attendance disclosed to us no information with respect to such
other matters that gives us reason to believe that the Registration Statement or
the Prospectus contained on the date the Registration Statement became effective
or contains now any untrue statement of a material fact or omitted on said date
or omits now to state a material fact required to be stated therein or necessary
to make the statements therein not misleading. We are of the opinion that the
Registration Statement and the Prospectus (except the financial statements and
the other financial information included or incorporated therein by reference,
as to which we express no opinion) comply as to form in all material respects to
the requirements of the Securities Act, the Securities Exchange Act and the
Trust Indenture Act, and to the applicable rules and regulations of the
Commission thereunder. We are further of the opinion that the Mortgage has been
duly qualified under the Trust Indenture Act.
7. Except as set forth in the Registration Statement, there are no pending
legal, administrative or judicial proceedings with respect to the Company
required to be described by Form S-3. The opinions in paragraphs 6 and 7 hereof
are given on the basis
that any statement contained in an Incorporated Document shall be deemed not to
be contained in the Registration Statement or Prospectus if the statement has
been modified or superseded by any statement in a subsequently filed
Incorporated Document or in the Registration Statement or Prospectus. We
understand that you are relying (we believe that you are justified in relying,
and for our part we rely) on the opinion of Xxxxxxx & Xxxxx as to all matters
governed by the laws of West Virginia, including the statements made in the
Prospectus on their authority.
Yours very truly,
MCGUIRE, WOODS, BATTLE & XXXXXX
SCHEDULE V
PROPOSED FORM OF OPINION
OF
XXXXXXX & XXXXX
1600 Laidley Tower
P. X. Xxx 000
Xxxxxxxxxx, Xxxx Xxxxxxxx 00000
Re: VIRGINIA ELECTRIC AND POWER COMPANY
First and Refunding Mortgage Bonds of 199_
Series _, ____%, due [date]
[Closing Date]
Virginia Electric and Power Company
P. O. Xxx 00000
Xxxxxxxx, Xxxxxxxx 00000
[name and address of
Representative]
Dear Sirs:
We are familiar with the arrangements for the issuance of $______________
aggregate principal amount of First and Refunding Mortgage Bonds of 200_, Series
_B, ____%, due [date] (the Bonds), of Virginia Electric and Power Company (the
Company) under an Indenture of Mortgage dated November 1, 1935, as supplemented
and modified by eighty-six supplemental indentures (the Mortgage), and the sale
thereof pursuant to an Underwriting Agreement dated [date] between the Company
and the Underwriters named in Schedule II thereto (the Underwriting Agreement),
and we have acted as West Virginia counsel for the Company in that regard.
We are of the opinion that, so far as governed by the laws of West
Virginia:
1. The Company is duly qualified as a foreign corporation in West Virginia
and has corporate power to conduct its business in West Virginia and issue the
Bonds.
2. No governmental authorization is requisite for the issuance of the Bonds
and their sale under the Underwriting Agreement.
3. The Mortgage has been duly authorized, executed and delivered, is valid
and binding (except as stated below) and so far as it relates to properties in
West Virginia constitutes a valid lien to the extent that it purports to be one
for the benefit of the holders of the bonds issued thereunder (subject as to
mortgaged personal properties, to the filing of the Eighty-Sixth Supplemental
Indenture in the office of the Secretary of State of West Virginia and except
that the lien may be defeated as to real property acquired after recordation of
any latest supplemental indenture and before recordation of a further
supplemental indenture and our opinion, so far as relating to the lien on
certain properties now owned, is accordingly subject to recordation of the
Eighty-Sixth Supplemental Indentures). The Mortgage contains customary
provisions for the enforcement of the security provided for therein, certain of
which may be limited by the laws of West Virginia (but such laws do not, in our
opinion, make inadequate the remedies necessary for the realization of the
benefits of such security) and may also be limited or rendered unavailable by
bankruptcy, moratorium and similar laws from time to time in force. We express
no opinion as to the validity or enforceability of any covenant to pay interest
on defaulted interest.
We have assumed, for purposes of the opinions herein expressed, that all
the Bonds have been duly executed, authenticated and delivered and are valid and
binding obligations of the Company, enforceable in accordance with their terms.
The statements in regard to our firm made under EXPERTS in the Prospectus
relating to the Bonds are correct, and we are of the opinion that the statements
in the Prospectus referred to as being made on our authority (including the
statements as to West Virginia titles and defects therein and franchises) are
substantially accurate and fair. In regard to titles to some of the properties
in West Virginia, we have made no independent investigation of original records,
but our opinion is based solely on reports and opinions by counsel in whom we
have confidence. We assume no responsibility for the accuracy or completeness of
any other statements in the Registration Statement, but we do not know of any
reason to believe that it contains any untrue statement of a material fact or
omits to state a material fact required to be stated or necessary to make the
statements not misleading. The foregoing is made on the basis that any statement
contained in a document incorporated by reference in the Registration Statement
or the Prospectus shall be deemed not to be contained in the Registration
Statement or Prospectus if the statement has been modified or superseded by any
statement in a subsequently filed incorporated document or in the Registration
Statement or Prospectus.
Very truly yours,
[XXXXXXX & XXXXX]
