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______________________________________________________________________________
______________________________________________________________________________
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DELMARVA POWER & LIGHT
COMPANY
(a Delaware and Virginia corporation)
5.00% Notes due June 1, 2015
PURCHASE AGREEMENT
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Dated: May 24, 2005
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______________________________________________________________________________
______________________________________________________________________________
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_____________________________________________________________________________
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Table of
Contents
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Page
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SECTION 1.
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Representations and Warranties
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2
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(a)
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Representations and Warranties by the Company
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2
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(i)
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Compliance with Registration Requirements
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2
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(ii)
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Incorporated Documents
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3
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(iii)
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Independent Accountants
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3
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(iv)
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Financial Statements
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3
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(v)
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No Material Adverse Change in Business
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3
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(vi)
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Good Standing of the Company
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3
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(vii)
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No Significant Subsidiaries
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4
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(viii)
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Capitalization
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4
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(ix)
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Authorization of Agreement
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4
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(x)
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Authorization of the Indenture
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4
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(xi)
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Authorization of the Securities
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4
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(xii)
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Description of the Securities and the Indenture
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4
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(xiii)
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Absence of Defaults and Conflicts
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4
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(xiv)
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Absence of Labor Dispute
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5
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(xv)
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Absence of Proceedings
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5
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(xvi)
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Accuracy of Exhibits
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(xvii)
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Absence of Further Requirements
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5
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(xviii)
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Possession of Licenses and Permits
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5
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(xix)
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Title to Property
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6
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(xx)
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Leases
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6
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(xxi)
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Investment Company Act
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6
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(xxii)
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Environmental Laws
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6
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(xxiii)
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Internal Controls
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6
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(xxiv)
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Compliance with Sarbanes Oxley
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7
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(b)
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Officer's Certificates
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7
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SECTION 2.
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Sale and Delivery to Underwriters; Closing
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7
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(a)
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Securities
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7
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(b)
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Payment
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7
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(c)
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Denominations; Registration
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7
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(d)
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Delivery of Global Securities
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8
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SECTION 3.
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Covenants of the Company
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8
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(a)
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Compliance with Securities Regulations and Commission
Requests
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8
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(b)
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Delivery of Registration Statements
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8
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(c)
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Delivery of Prospectuses
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9
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(d)
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Continued Compliance with Securities Laws
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9
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(e)
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Review of Amendments and Supplements
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9
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(f)
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Blue Sky Qualifications
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10
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(g)
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Rule 158
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10
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(h)
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Use of Proceeds
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10
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(i)
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Restriction on Sale of Securities
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10
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(j)
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Reporting Requirements
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10
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SECTION 4.
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Payment of Expenses
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10
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(a)
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Expenses
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10
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(b)
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Termination of Agreement
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11
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SECTION 5.
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Conditions of Underwriters' Obligations
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11
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(a)
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Effectiveness of Registration Statement
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11
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ii
_____________________________________________________________________________
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(b)
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Opinions of Counsel for Company
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11
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(c)
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Opinion of Counsel for Underwriters
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11
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(d)
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Officers' Certificate
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11
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(e)
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Accountant's Comfort Letter
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12
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(f)
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Maintenance of Rating
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12
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(g)
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Additional Documents
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12
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(h)
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Termination of Agreement
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12
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SECTION 6.
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Indemnification
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12
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(a)
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Indemnification of Underwriters
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12
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(b)
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Indemnification of Company, Directors and Officers
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13
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(c)
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Actions against Parties; Notification
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13
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SECTION 7.
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Contribution
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14
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SECTION 8.
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Representations, Warranties and Agreements to Survive
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15
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SECTION 9.
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Termination of Agreement
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15
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(a)
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Termination; General
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15
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(b)
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Liabilities
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15
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SECTION 10.
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Default by One or More of the Underwriters
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15
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SECTION 11.
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Notices
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16
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SECTION 12.
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Parties
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16
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SECTION 13.
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Governing Law and Time
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16
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SECTION 14.
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Counterparts
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16
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SECTION 15.
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Effect of Headings
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16
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SCHEDULES
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Schedule A
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List of Underwriters
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Sch A-1
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Schedule B
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Pricing Information
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Sch B-1
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EXHIBITS
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Exhibit A - Form of Opinion of Kirk J. Emge, Esq.
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A-1
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Exhibit B - Form of Opinion of Covington & Burling
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B-1
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iii
_____________________________________________________________________________
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DELMARVA POWER &
LIGHT COMPANY
(a Delaware and Virginia corporation)
$100,000,000
5.00% Notes due June 1, 2015
PURCHASE AGREEMENT
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May 24, 2005
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MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
4 World
Financial Center
New York, New
York 10080
CREDIT SUISSE FIRST BOSTON LLC
Eleven
Madison Avenue
New
York, New York 10010-3629
As Representatives of the Several Underwriters
Ladies and Gentlemen:
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Delmarva
Power & Light Company, a Delaware and Virginia corporation (the
" Company "), confirms its agreement with Merrill Lynch
& Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated (" Merrill Lynch ") and Credit Suisse First
Boston LLC (" CSFB ") and each of the other Underwriters
named in Schedule A hereto (collectively, the " Underwriters
", which term shall also include any underwriter substituted as
hereinafter provided in Section 10 hereof), for whom Merrill
Lynch and CSFB are acting as representatives (in such capacity, the
" Representatives "), with respect to the issue and sale by
the Company and the purchase by the Underwriters, acting severally
and not jointly, of the respective principal amounts set forth in
Schedule A hereto of $100,000,000 in aggregate principal
amount of the Company's 5.00% Notes due June 1, 2015 (the "
Securities ").
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The
Securities are to be issued under an indenture, dated as of
November 1, 1988, between the Company and JPMorgan Chase Bank,
N.A., trustee (the " Trustee "), as supplemented by an
officer's certificate, to be dated the Closing Time (as hereinafter
defined in Section 2(b)), establishing the terms of the Securities,
such indenture, as so supplemented, being hereinafter called the "
Indenture ".
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The
Company understands that the Underwriters propose to make a public
offering of the Securities promptly after this Agreement has been
executed and delivered.
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The
Company has filed with the Securities and Exchange Commission (the
"Commission") on April 26, 2005 a registration statement on
Form S-3 (No. 333-124331), for the registration of debt
securities, including the Securities, under the Securities Act of
1933, as amended (the "1933 Act"), and the offer and sale thereof
from time to time in accordance with Rule 415 of the rules and
regulations of the Commission under the 1933 Act (the "1933 Act
Regulations"), and for the qualification of the Indenture under the
Trust Indenture Act of 1939, as amended (the "1939 Act"). Such
registration statement has been declared effective by the
Commission. Such registration statement, including the
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_____________________________________________________________________________
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exhibits and schedules thereto, at the time it became effective,
is referred to herein as the " Registration Statement
"; and the final prospectus and the final prospectus supplement
relating to the offering of the Securities, in the forms first
furnished to the Underwriters by the Company for use in connection
with the offering of the Securities, are collectively referred to
herein as the " Prospectus "; provided ,
however , that all references to the "Registration
Statement" and the "Prospectus" shall also be deemed to include all
documents filed pursuant to the Securities Exchange Act of 1934
(the " 1934 Act ") prior to the execution and delivery
hereof which are incorporated therein by reference pursuant to Item
12 of Form S-3 under the 1933 Act. A " preliminary
prospectus " shall be deemed to refer to (i) any prospectus
used before the Registration Statement became effective and (ii)
any prospectus that omitted information to be included upon pricing
in a form of prospectus filed with the Commission pursuant to Rule
424(b) of the 1933 Act Regulations and was used after the
Registration Statement became effective and prior to the initial
delivery of the Prospectus to the Underwriters by the Company. For
purposes of this Agreement, all references to the Registration
Statement, Prospectus or preliminary prospectus or to any amendment
or supplement to any of the foregoing shall be deemed to include
the copy of such document filed with the Commission pursuant to its
Electronic Data Gathering, Analysis and Retrieval system ("
EDGAR ").
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All
references in this Agreement to financial statements and schedules
and other information which is "described", "disclosed", "referred
to", "contained", "included" or "stated" in the Registration
Statement, any preliminary prospectus or the Prospectus (or other
references of like import) shall be deemed to mean and include all
such financial statements and schedules and other information which
is incorporated by reference in the Registration Statement, any
preliminary prospectus or the Prospectus, as the case may be; and
all references in this Agreement to amendments or supplements to
the Registration Statement, any preliminary prospectus or the
Prospectus shall be deemed to mean and include the filing of any
document under the 1934 Act which is incorporated by reference in
the Registration Statement, such preliminary prospectus or the
Prospectus, as the case may be.
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SECTION
1. Representations and
Warranties .
(a)
Representations and Warranties by the Company . The Company
represents and warrants to each Underwriter as of the date hereof
and as of the Closing Time as follows:
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(
i)
Compliance with Registration Requirements . The Company
meets the requirements for use of Form S-3 under the 1933 Act. The
Registration Statement has become effective under the 1933 Act and
no stop order suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act and no proceedings for
that purpose have been instituted by the Commission or are pending
or, to the knowledge of the Company, are contemplated by the
Commission, and any request on the part of the Commission for
additional information with respect to the Registration Statement
has been complied with.
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At
the time the Registration Statement became effective and at the
Closing Time, the Registration Statement and any amendments and
supplements thereto complied and will comply in all material
respects with the requirements of the 1933 Act and the 1933 Act
Regulations and the 1939 Act and the rules and regulations of the
Commission under the 1939 Act (the "1939 Act Regulations"), and did
not and will not 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. Neither
the Prospectus nor any amendments or supplements thereto, at the
time the Prospectus or any such amendment or supplement was issued
and at the Closing Time, included or will include an untrue
statement of a material fact or omitted or will 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. The representations and warranties in this subsection
shall not apply to statements in or omissions from the Registration
Statement or Prospectus made
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2
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in reliance upon and in conformity with information furnished to
the Company in writing by any Underwriter expressly for use in the
Registration Statement or Prospectus.
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Each
preliminary prospectus and the prospectus filed as part of the
Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933
Act, complied when so filed in all material respects with the 1933
Act Regulations and each preliminary prospectus and the Prospectus
delivered to the Underwriters for use in connection with this
offering was identical to the electronically transmitted copies
thereof filed with the Commission pursuant to EDGAR, except to the
extent permitted by Regulation S-T.
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(ii)
Incorporated Documents . The documents incorporated by
reference in the Registration Statement and the Prospectus, at the
time they were or hereafter are filed with the Commission, complied
and will comply in all material respects with the requirements of
the 1934 Act and the rules and regulations of the Commission
thereunder (the " 1934 Act Regulations "), and, when read
together with the other information in the Prospectus, at the time
the Registration Statement became effective, at the time the
Prospectus was issued and at the Closing Time, did not and will not
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.
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(iii)
Independent Accountants . The accountants who audited the
financial statements and supporting schedules included in the
Registration Statement are independent public accountants within
the meaning of Regulation S-X of the Commission.
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(iv)
Financial Statements . The financial statements, together
with the respective schedules and notes relating thereto, included
in the Registration Statement and the Prospectus, present fairly
the financial position of the Company and its consolidated
subsidiaries at the dates indicated and the statement of
operations, stockholder's equity and cash flows of the Company and
its consolidated subsidiaries for the periods specified; said
financial statements have been prepared in conformity with
generally accepted accounting principles (" GAAP ") applied
on a consistent basis throughout the periods involved, except as
otherwise stated therein. The selected financial data and the
summary financial information included in the Prospectus present
fairly the information shown therein and have been compiled on a
basis consistent with that of the audited financial statements
included in the Registration Statement. The financial statements
and other financial data included in the Registration Statement and
the Prospectus as of the date hereof comply, and as of Closing Time
will comply, in all material respects with the requirements of
paragraph (e) of Item 10 of Regulation S-K.
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(v)
No Material Adverse Change in Business . Since the
respective dates as of which information is given in the
Prospectus, except as otherwise stated therein, there has been no
material adverse change in the business, condition (financial or
otherwise) or results of operations of the Company and its
subsidiaries considered as one enterprise, whether or not arising
in the ordinary course of business (hereinafter, a " Material
Adverse Change ").
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(vi)
Good Standing of the Company . The Company has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of Delaware and the Commonwealth of
Virginia and has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in
the Prospectus and to enter into and perform its obligations under
this Agreement; and the Company is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business,
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3
_____________________________________________________________________________
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except where the failure so to qualify or to be in good standing
would not have a material adverse effect on the business, condition
(financial or otherwise) or results of operations of the Company
and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business (hereinafter, a "
Material Adverse Effect ").
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(vii)
No Significant Subsidiaries . The Company has no
subsidiaries which would be deemed "significant subsidiaries" as
defined in Rule 1-02 of Regulation S-X.
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(viii)
Capitalization . The authorized, issued and outstanding
capital stock of the Company is as set forth in the Prospectus. The
shares of issued and outstanding capital stock of the Company have
been duly authorized and validly issued and are fully paid and
non-assessable and, except for issued and outstanding preferred
stock, are owned by Conectiv, a Delaware corporation wholly-owned
by Pepco Holdings, Inc., also a Delaware corporation; none of the
outstanding shares of capital stock of the Company was issued in
violation of the preemptive or other similar rights of any
securityholder of the Company.
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(ix)
Authorization of Agreement . This Agreement has been duly
authorized, executed and delivered by the Company.
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(x)
Authorization of the Indenture . The Indenture has been duly
authorized, executed and delivered by the Company and constitutes
the valid and legally binding obligation of the Company,
enforceable in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles. The Indenture
has been duly qualified under the 1939 Act.
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(xi)
Authorization of the Securities . The Securities have been
duly authorized by the Company and, at the Closing Time, will have
been duly executed by the Company; and, when the Securities have
been (A) authenticated and delivered by the Trustee under the
Indenture and (B) issued and delivered by the Company against
payment of the purchase price therefor as provided in this
Agreement, the Securities will constitute valid and legally binding
obligations of the Company, enforceable in accordance with their
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to
general equity principles, and will be entitled to the benefits of
the Indenture.
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(xii)
Description of the Securities and the Indenture . The
descriptions of the Securities and the Indenture in the Prospectus
are accurate in all material respects and the Securities and the
Indenture will be in substantially the respective forms filed or
incorporated by reference, as the case may be, as exhibits to the
Registration Statement.
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(xiii)
Absence of Defaults and Conflicts . The Company is not in
violation of its articles of incorporation or by-laws or in default
in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or
other agreement or instrument to which the Company is a party or by
which it may be bound, or to which any of the property or assets of
the Company is subject (collectively, " Agreements and
Instruments ") except for such defaults as have not resulted,
and are not reasonably expected to result, in a Material Adverse
Effect; and the execution, delivery and performance of this
Agreement, the Indenture and the Securities, and the consummation
of the transactions contemplated herein (including the issuance and
sale of the Securities and the use of the proceeds from the sale of
the Securities as described in the
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4
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Prospectus under the caption "Use of Proceeds") and compliance
by the Company with its obligations hereunder, under the Indenture
and on the Securities, have been duly authorized by all necessary
corporate action and do not and will not, whether with or without
the giving of notice or passage of time or both, conflict with or
constitute a breach of, or default or Repayment Event (as defined
below) under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company
pursuant to, the Agreements and Instruments (except for such
conflicts, breaches or defaults or liens, charges or encumbrances
that would not result in a Material Adverse Effect), nor will such
action result in any violation of the provisions of the articles of
incorporation or by-laws of the Company or any applicable law,
statute, rule, regulation, judgment, order, writ or decree of any
government, government instrumentality or court, domestic or
foreign, having jurisdiction over the Company or any of its assets,
properties or operations. As used herein, a " Repayment
Event " means any event or condition that gives the holder of
any note, debenture or other evidence of indebtedness (or any
person acting on such holder's behalf) the right to require the
repurchase, redemption or repayment of all or a portion of such
indebtedness by the Company.
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(xiv)
Absence of Labor Dispute . No labor dispute with the
employees of the Company exists or, to the knowledge of the
Company, is imminent, and the Company is not aware of any existing
or imminent labor disturbance by the employees of any of its
principal suppliers, manufacturers, customers or contractors,
which, in either case, could reasonably be expected to result in a
Material Adverse Effect.
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(xv)
Absence of Proceedings . There is no action, suit,
proceeding, inquiry or investigation before or brought by any court
or governmental agency or body, domestic or foreign, now pending,
or, to the knowledge of the Company, threatened, against or
affecting the Company, that (A) is required to be disclosed in the
Registration Statement and is not disclosed as required, (B) could
reasonably be expected to materially and adversely affect the
consummation of the transactions contemplated in this Agreement or
the performance by the Company of its obligations hereunder or (C)
except as disclosed in the Prospectus, could reasonably be expected
to result in a Material Adverse Effect. The aggregate of all
pending legal or governmental proceedings to which the Company is a
party or of which any of its property or assets is the subject
which are not described in the Registration Statement, including
ordinary routine litigation incidental to the business, could not
reasonably be expected to result in a Material Adverse Effect.
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(xvi)
Accuracy of Exhibits . All contracts or documents which are
required to be described in the Registration Statement, the
Prospectus or the documents incorporated by reference therein or to
be filed as exhibits to the Registration Statement have been so
described and filed as required.
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(xvii)
Absence of Further Requirements . All filings with, and
authorizations, approvals, consents, licenses, orders,
registrations, qualifications or decrees of, any court or
governmental authority or agency that are necessary or required for
the performance by the Company of its obligations hereunder, in
connection with the offering, issuance or sale of the Securities
hereunder or the consummation of the transactions contemplated by
this Agreement or for the due execution, delivery or performance by
the Company of the Indenture, have been obtained except such as may
be required under the 1933 Act or the 1933 Act Regulations or under
state securities laws, and the Company has complied with all terms
and conditions contained in such authorizations, approvals,
consents, licenses, orders, registrations, qualifications or
decrees as have been obtained.
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5
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(xviii)
Possession of Licenses and Permits . The Company possesses
such permits, licenses, approvals, consents and other
authorizations (collectively, " Governmental Licenses ")
issued by the appropriate federal, state, local or foreign
regulatory agencies or bodies necessary to conduct the business now
operated by it and is in compliance with the terms and conditions
of all such Governmental Licenses, except where the failure so to
possess any such Governmental License or to comply therewith would
not, singly or in the aggregate, have a Material Adverse Effect;
all of the Governmental Licenses are valid and in full force and
effect, except where the invalidity of such Governmental Licenses
or the failure of such Governmental Licenses to be in full force
and effect would not have a Material Adverse Effect; and the
Company has not received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses, the
revocation or modification of which would, singly or in the
aggregate, result in a Material Adverse Effect.
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(xix)
Title to Property . The Company has good and marketable
title to all real property owned by the Company and good title to
all other properties owned by the Company, in each case, free and
clear of all mortgages, pledges, liens, security interests, claims,
restrictions or encumbrances of any kind except such as (a) are
described in the Prospectus or (b) do not, singly or in the
aggregate, materially affect the value of such property and do not
materially interfere with the use made and proposed to be made of
such property by the Company.
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(xx)
Leases . All of the leases and subleases material to the
business of the Company, and under which the Company holds
properties described in the Prospectus, are in full force and
effect, and the Company has no notice of any claim of any sort
asserted by anyone adverse to the rights of the Company under any
of the leases or subleases mentioned above, or affecting or
questioning the rights of the Company to the continued possession
of the leased or subleased premises under any such lease or
sublease, that, if the subject of an adverse decision, ruling or
finding, would have a Material Adverse Effect.
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(xxi)
Investment Company Act . The Company is not, and upon the
issuance and sale of the Securities as herein contemplated and the
application of the net proceeds therefrom as described in the
Prospectus, will not be, 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 (the "1940
Act").
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(xxii)
Environmental Laws . Except as described in the Prospectus
and except as would not, singly or in the aggregate, result in a
Material Adverse Effect, (A) the Company is not in violation of any
federal, state, local or foreign statute, law, rule, regulation,
ordinance, code, policy or rule of common law or any judicial or
administrative interpretation thereof, including any judicial or
administrative order, consent, decree or judgment, relating to
pollution or protection of human health, the environment
(including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife,
including, without limitation, laws and regulations relating to the
release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances,
petroleum or petroleum products (collectively, " Hazardous
Materials ") or to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of
Hazardous Materials (collectively, " Environmental Laws "),
(B) the Company has all permits, authorizations and approvals
required under any applicable Environmental Laws and is in
compliance with their requirements, (C) there are no pending, or to
the knowledge of the Company, threatened administrative, regulatory
or judicial actions, suits, demands, demand letters, claims, liens,
notices of noncompliance or violation, investigation or proceedings
relating to any Environmental Law against the Company and (D) to
the knowledge of the Company, there are no events or
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circumstances that could reasonably be expected to form the
basis of an order for clean-up or remediation, or an action, suit
or proceeding by any private party or governmental body or agency,
against or affecting the Company relating to Hazardous Materials or
Environmental Laws.
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(xviii)
Internal Controls . (i) The Company has established and
maintains the following, among other, internal controls (without
duplication),
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(A) The Company has devised and maintains in effect a system of
"internal accounting controls" as contemplated in Section
13(b)(2)(B) of the 1934 Act ("Accounting Controls"). To the best
knowledge of the Company, the Accounting Controls are effective in
all material respects to perform the functions for which they were
designed.
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(B) The Company has established and maintains "disclosure controls
and procedures" as such term is defined in Rule 15d-15(e) under the
1934 Act (" Disclosure Controls "). The effectiveness of
such Disclosure Controls is evaluated by the Company's senior
management on a quarterly basis, and, to the best knowledge of the
Company, the Disclosure Controls are effective in all material
respects to perform the functions for which they were
established.
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(ii) Based on the most recent evaluation of the Company's internal
controls described above, all significant deficiencies in the
design or operation of such internal controls which could adversely
affect the Company's ability to record, process, summarize and
report financial data required to be disclosed by the Company in
its reports filed under Section 13(a) of the 1934 Act within the
time periods specified in the 1934 Act Regulations, any material
weaknesses in such internal controls and any fraud, whether or not
material, that involves management or other employees who have a
significant role in such internal controls have been identified and
reported to the Company's auditors and the audit committee of the
board of directors.
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(xxiv)
Compliance with Sarbanes Oxley . The Company is in
compliance in all material respects with the Sarbanes-Oxley Act of
2002 and the rules and regulations of the Commission and the New
York Stock Exchange that have been adopted thereunder, all to the
extent that such Act and such rules and regulations are in effect
and applicable to the Company.
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(b)
Officer's Certificates . Any certificate signed by any
officer of the Company delivered to the Underwriters or to counsel
for the Underwriters shall be deemed a representation and warranty
by the Company to each Underwriter as to the matters covered
thereby.
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SECTION
2. Sale and Delivery to
Underwriters; Closing .
(a)
Securities . On the basis of the representations and
warranties herein contained and subject to the terms and conditions
herein set forth, the Company agrees to sell to each Underwriter,
severally and not jointly, and each Underwriter, severally and not
jointly, agrees to purchase from the Company, at the prices set
forth in Schedule B, the aggregate principal amount of Securities
set forth in Schedule A opposite the name of such Underwriter, plus
any additional principal amount of Securities which such
Underwriter may become obligated to purchase pursuant to the
provisions of Section 10 hereof.
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(b)
Payment . Payment of the purchase price for, and
delivery of certificates for, the Securities shall be made at the
offices of Covington & Burling at 1201 Pennsylvania Avenue,
NW,
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Washington, D.C. 20004, or at such other place as shall be
agreed upon by the Representatives and the Company, at
9:00 A.M. (Eastern time) on the fifth business day after the
date hereof (unless postponed in accordance with the provisions of
Section 10), or such other time not later than ten business
days after such date as shall be agreed upon by the Representatives
and the Company (such time and date of payment and delivery being
herein called " Closing Time ").
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Washington, D.C. 20004, or at such other place as shall be
agreed upon by the Representatives and the Company, at
9:00 A.M. (Eastern time) on the fifth business day after the
date hereof (unless postponed in accordance with the provisions of
Section 10), or such other time not later than ten business
days after such date as shall be agreed upon by the Representatives
and the Company (such time and date of payment and delivery being
herein called " Closing Time ").
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Payment shall be made to the Company by wire transfer
of immediately available funds to a bank account designated by the
Company, against delivery to the Representatives for the respective
accounts of the Underwriters of certificates for the Securities to
be purchased by them. It is understood that each Underwriter has
authorized the Representatives, for its account, to accept delivery
of, receipt for, and to make payment of the purchase price for, the
Securities which it has agreed to purchase. Merrill Lynch and/or
CSFB, individually and not as representatives of the Underwriters,
may (but shall not be obligated to) make payment of the purchase
price for the Securities to be purchased by any Underwriter whose
funds have not been received by the Closing Time, but such payment
shall not relieve such Underwriter from its obligations
hereunder.
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(c)
Denominations; Registration . The Securities shall be
in such denominations ($1,000 or integral multiples thereof) and
registered in such names as the Representatives may request in
writing at least one full business day before the Closing Time. The
Securities will be made available for examination and packaging by
the Representatives in Washington, D.C. not later than
10:00 A.M. (Eastern time) on the business day prior to the
Closing Time.
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(d)
Delivery of Global Securities. In lieu of the delivery
to the Underwriters of certificates representing the Securities at
the Closing Time, as contemplated above, the Company, with the
approval of the Representatives, may deliver one or more global
Securities to a custodian for The Depository Trust Company ("
DTC "), to be held by DTC initially for the accounts of the
several Underwriters.
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SECTION 3. Covenants
of the Company .
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(a)
Compliance with Securities Regulations and Commission
Requests . The Company, subject to Section 3(b), will notify
the Representatives immediately, and confirm the notice in writing,
(i) when any post-effective amendment to the Registration
Statement shall become effective, or any supplement to the
Prospectus or any amended Prospectus shall have been filed,
(ii) of the receipt of any comments from the Commission with
respect to the Registration Statement or the Prospectus,
(iii) of any request by the Commission for any amendment to
the Registration Statement or any amendment or supplement to the
Prospectus or for additional information with respect to the
Registration Statement or the Prospectus, and (iv) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order
preventing or suspending the use of any preliminary prospectus, or
of the suspension of the qualification of the Securities for
offering or sale in any jurisdiction, or of the initiation or
threatening of any proceedings for any of such purposes. Following
the execution and delivery of this Agreement, the Company will
promptly file the Prospectus pursuant to Rule 424(b) and will take
such steps as it deems necessary to ascertain promptly whether the
form of prospectus transmitted for filing under Rule 424(b) was
received for filing by the Commission. The Company will make every
reasonable effort to prevent the issuance of any stop order and, if
any stop order is issued, to obtain the lifting thereof at the
earliest possible moment.
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(b)
Delivery of Registration Statements . The Company has
furnished or will deliver to the Representatives and counsel for
the Underwriters, without charge, signed copies of the Registration
Statement as originally filed and of each amendment thereto
(including exhibits filed therewith or incorporated by reference
therein and documents incorporated or deemed to be incorporated by
reference therein) and signed copies of all consents and
certificates of experts, and will also deliver to the
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Representatives, without charge, a conformed copy of the
Registration Statement as originally filed and of each amendment
thereto (without exhibits). The copies of the Registration
Statement and each amendment thereto furnished to the Underwriters
will be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to EDGAR, except to the extent
permitted by Regulation S-T.
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(c)
Delivery of Prospectuses . The Company has delivered
to each Underwriter, without charge, as many copies of each
preliminary prospectus as such Underwriter reasonably requested,
and the Company hereby consents to the use of such copies by the
Underwriters for purposes permitted by the 1933 Act. The Company
will furnish to each Underwriter, without charge, during the period
when the Prospectus is required to be delivered under the 1933 Act,
such number of copies of the Prospectus (as amended or
supplemented) as such Underwriter may reasonably request. The
Prospectus and any amendments or supplements thereto furnished to
the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to
EDGAR, except to the extent permitted by Regulation S-T.
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(d)
Continued Compliance with Securities Laws . (i) The
Company will comply with the 1933 Act and the 1933 Act Regulations
and the 1934 Act and the 1934 Act Regulations so as to permit the
completion of the distribution of the Securities as contemplated in
this Agreement and in the Prospectus.
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(ii)
The Company will immediately notify the
Representatives, and confirm such notice in writing, of (x) any
filing made by the Company of information relating to the offering
of the Securities with any securities exchange or any other
regulatory body in the United States or any other jurisdiction and
(y) prior to the completion of the distribution of the Securities
by the Underwriters as evidenced by a notice in writing from
Merrill Lynch on behalf of the Underwriters to the Company (the "
Notice of Completion "), any material changes in or
affecting the business, condition (financial or otherwise) or
results of operations of
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