Exhibit 1
$1,000,000,000
VIRGINIA ELECTRIC AND POWER
COMPANY
$450,000,000 2006 Series A 5.4% Senior Notes Due
2016
$550,000,000 2006 Series B 6.0% Senior Notes Due
2036
UNDERWRITING AGREEMENT
January 10, 2006
J.P. Morgan Securities
Inc.
Lehman Brothers Inc.
Merrill Lynch, Pierce,
Fenner & Smith Incorporated
as Representatives for the
Underwriters
listed in Schedule I
hereto
J.P. Morgan Securities
Inc.
270 Park Avenue, 8
th
Floor
New York, New York 10017
Lehman Brothers Inc.
745 Seventh Avenue
New York, New York 10019
Merrill Lynch, Pierce,
Fenner & Smith Incorporated
4 World Financial Center
New York, New York 10080
Ladies and Gentlemen:
The undersigned, Virginia Electric
and Power Company (the Company), hereby confirms its agreement with
the several Underwriters named in Schedule I hereto (the Agreement)
with respect to the issuance and sale to the several Underwriters
named in Schedule I of certain of the Company’s 2006 Series A
5.4% Senior Notes Due 2016 and 2006 Series B 6.0% Senior Notes Due
2036 (collectively, the Senior Notes) specified in Schedule II
hereto, and the public offering thereof by the several
Underwriters, upon the terms specified in Schedule II. Capitalized
terms used herein without definition shall be used as defined in
the Prospectus (as hereinafter defined).
1. Underwriters and
Representatives . The term “Underwriters” as used
herein shall be deemed to mean the several persons, firms or
corporations (including the Representatives hereinafter mentioned)
named in Schedule I hereto, and the term
“Representatives” as used herein shall be deemed to
mean the Representatives to whom this Agreement is addressed, who
by signing this Agreement represent that they have been authorized
by the other Underwriters to execute this Agreement on their behalf
and to act for them in the manner herein provided. If there shall
be only one person, firm or corporation named as an addressee
above, the term “Representatives” as used herein shall
mean that person, firm or corporation. If there shall be only one
person, firm or corporation named in Schedule I hereto, the term
“Underwriters” as used herein shall mean that person,
firm or corporation. All obligations of the Underwriters hereunder
are several and not joint. Unless otherwise stated, any action
under or in respect of this Agreement taken by the Representatives
will be binding upon all the Underwriters.
2. Description of the Senior
Notes . Schedule II specifies the aggregate principal amount of
the Senior Notes, the initial public offering price of the Senior
Notes, and the purchase price to be paid by the Underwriters and
sets forth the date, time and manner of delivery of the Senior
Notes and payment therefor. Schedule II also specifies (to the
extent not set forth in Sections 4 and 5 herein, or in the
Registration Statement, Time of Sale Information or Prospectus,
each such term as defined below) the terms and provisions for the
purchase of such Senior Notes. The Senior Notes will be issued
under the Company’s Senior Indenture dated as of June 1,
1998 between the Company and JPMorgan Chase Bank, N.A. (formerly
known as The Chase Manhattan Bank), as Trustee (the Trustee), as
previously supplemented and as further supplemented by a Twelfth
Supplemental Indenture dated as of January 1, 2006 and a
Thirteenth Supplemental Indenture dated as of January 1, 2006
(collectively, the Indenture).
3A. Representations and
Warranties of the Company . The Company represents and warrants
to, and agrees with, the Underwriters that:
(a) A registration statement,
No. 333-130932 on Form S-3 for the registration of the Senior
Notes under the Securities Act of 1933, as amended (the Securities
Act), heretofore filed with the Securities and Exchange Commission
(the Commission) has become effective. Such registration statement
(i) is an “automatic shelf registration statement”
as defined in Rule 405 under the Securities Act and
(ii) became effective not earlier than three years prior to
the date hereof, and the Company has not received any notice of
objection of the Commission to the use of such registration
statement or any post-effective amendment thereto pursuant to Rule
401(g)(2) under the Securities Act. As used herein,
“Registration Statement” means, at any given time, such
registration statement including the amendments thereto up to such
time, the exhibits and any schedules thereto at such time, the
Incorporated Documents (as defined below) at such time and
documents otherwise deemed to be a part thereof or included therein
at such time pursuant to the Rules and Regulations (as defined
below); “Rule 430B Information” means information
that was omitted from the Registration Statement at the time it
became effective but that is deemed to be part of and included in
the Registration Statement pursuant to Rule 430B under the
Securities Act; “Base Prospectus” means the base
prospectus included in the Registration Statement;
“Preliminary Prospectus” means the Base Prospectus and
any prospectus supplement used in connection with the offering of
the Senior Notes that omitted the Rule 430B Information and is
used prior to the filing
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of the Prospectus (as defined
below); “Prospectus” means the prospectus supplement to
the Base Prospectus that is first filed after the execution hereof
pursuant to Rule 424(b) under the Securities Act, together
with the Base Prospectus, as amended at the time of such filing;
and “Prospectus Supplement” means the prospectus
supplement to the Base Prospectus included in the Prospectus. As
used herein, the terms “Registration Statement,”
“Base Prospectus,” “Preliminary
Prospectus,” “Prospectus” and “Prospectus
Supplement” include all documents (including any Current
Report on Form 8-K) incorporated therein by reference, whether such
incorporated documents are filed before or after the date of such
Registration Statement or Prospectus (collectively, the
Incorporated Documents). When such Incorporated Documents are filed
after the date of the document into which they are incorporated,
they shall be deemed included therein from the date of filing of
such Incorporated Documents.
At or before 5:00 p.m. on the date
hereof (the Time of Sale), the Company had prepared the following
information in connection with the offering (collectively, the Time
of Sale Information): the Base Prospectus dated January 9,
2006, each Preliminary Prospectus, the Final Term Sheet (as defined
in Section 6(a)) and any Issuer Free Writing Prospectus (as
defined in Section 3A(c)) listed on Schedule VI hereto.
Notwithstanding any provision hereof to the contrary, each document
included in the Time of Sale Information shall be deemed to include
all documents (including any Current Report on Form 8-K)
incorporated therein by reference, whether any such Incorporated
Document is filed before or after the document into which it is
incorporated, so long as the Incorporated Document is filed before
the Time of Sale.
(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 or
pursuant to Section 8A of the Securities Act against the
Company or related to the offering are pending before or, to the
knowledge of the Company, threatened by the Commission. The
Registration Statement and the Prospectus comply in all material
respects with the provisions of the Securities Act, the Securities
Exchange Act of 1934, as amended (the Securities Exchange Act), the
Trust Indenture Act of 1939, as amended (the Trust Indenture Act),
and the rules, regulations and releases of the Commission under the
Securities Act, the Securities Exchange Act and the Trust Indenture
Act (the Rules and Regulations); neither the Registration Statement
on any date on which it has been deemed to have become effective
(the Effective Date), the Prospectus at the time it was issued nor
the Time of Sale Information at the Time of Sale, contained or
contains an untrue statement of a material fact or omitted or omits
to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; and, on the Closing
Date (as defined below), the Registration Statement and the
Prospectus (including any amendments and supplements thereto) will
conform in all respects to the requirements of the Securities Act,
the Securities Exchange Act, the Trust Indenture Act and the Rules
and Regulations, and none of the Registration Statement, the Time
of Sale Information or the Prospectus 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 3A(b) shall not
apply to statements in or omissions from the Registration
Statement, the
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Time of Sale Information or the
Prospectus made in reliance upon information furnished herein or in
writing to the Company by the Underwriters or on the
Underwriters’ behalf through the Representatives for use in
the Registration Statement, the Time of Sale Information or the
Prospectus or the part of the Registration Statement which
constitutes the Trustee’s Statement of Eligibility under the
Trust Indenture Act; and provided further, that, except as
otherwise provided in Section 3A(a) with respect to the Time
of Sale Information, 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, the Time of Sale Information 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) Other than the Base Prospectus,
any Preliminary Prospectus, the documents listed on Schedule VI,
the Prospectus, or any document not constituting a prospectus under
Section 2(a)(10)(a) of the Securities Act or Rule 134 under
the Securities Act, the Company (including its agents and
representatives, other than the Underwriters in their capacity as
such) has not made, used, prepared, authorized, approved or
referred to and will not prepare, make, use, authorize, approve or
refer to, any “written communication” (as defined in
Rule 405 under the Securities Act) that constitutes an offer to
sell or solicitation of an offer to buy the Senior Notes, unless
such written communication is approved in writing in advance by the
Representatives. To the extent any such written communication
constitutes an “issuer free writing prospectus” (as
defined in Rule 433 under the Securities Act and referred to herein
as an Issuer Free Writing Prospectus), such Issuer Free Writing
Prospectus complied or will comply in all material respects with
the requirements of Rule 433(c) and, if the filing thereof is
required pursuant to Rule 433, such filing has been or will be made
in the manner and within the time period required by
Rule 433(d). The Company will, pursuant to reasonable
procedures developed in good faith, retain copies of each such
Issuer Free Writing Prospectus in accordance with Rule 433 under
the Securities Act.
(d) Except as reflected in, or
contemplated by, the Registration Statement, the Time of Sale
Information and the Prospectus (exclusive of any amendments or
supplements after the date hereof), since the respective most
recent dates as of which information is given in the Registration
Statement, the Time of Sale Information and the Prospectus
(exclusive of any amendments or supplements after the date hereof),
there has not been any material adverse change or event which would
result in a material adverse effect on the condition of the Company
and its subsidiaries taken as a whole, financial or otherwise (a
Material Adverse Effect). The Company and its subsidiaries taken as
a whole have no material contingent financial obligation which is
not disclosed in the Registration Statement, the Time of Sale
Information or the Prospectus.
(e) Deloitte & Touche LLP,
who has audited certain of the Company’s financial statements
filed with the Commission and incorporated by reference in the
Registration Statement, is an independent registered public
accounting firm as required by the Securities Act and the Rules and
Regulations.
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(f) Virginia Power Services, Inc.
(VPSI) and Virginia Power Energy Marketing, Inc. (VPEM) were the
only Significant Subsidiaries of the Company as such term is
defined in Rule 1-02 of Regulation S-X, as of the end of the fiscal
year ended December 31, 2004. As of December 31, 2005,
VPEM ceased to be a subsidiary of the Company. As of
December 31, 2005, VPSI converted to a limited liability
company known as Virginia Power Services, LLC (VPSLLC). All of the
issued and outstanding membership interests of VPSLLC have been
duly authorized and validly issued and are owned by the Company,
directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, claim, encumbrance or equitable
right.
(g) The execution, delivery and
performance of this Agreement, the Indenture, and the Senior Notes,
the consummation of the transactions contemplated in this Agreement
and in the Registration Statement (including the issuance and sale
of the Senior Notes and the use of the proceeds from the sale of
the Senior Notes as described in the Prospectus under the caption
“Use of Proceeds”) and compliance by the Company with
its obligations under this Agreement, the Indenture and the Senior
Notes do not and will not, whether with or without the giving of
notice or lapse of time or both, conflict with or constitute a
breach of or default under, or result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of
the Company or any subsidiary pursuant to any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or
any other agreement or instrument, to which the Company or any
subsidiary is a party or by which it or any of them may be bound,
or to which any of the property or assets of the Company or any
subsidiary is subject (except for such conflicts, breaches or
defaults or liens, charges or encumbrances that would not have a
Material Adverse Effect), nor will such action result in any
violation of the provisions of the charter or bylaws of the Company
or any subsidiary, or any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government,
government instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any subsidiary or any of their
respective properties, assets or operations, and the Company has
full power and authority to authorize, issue and sell the Senior
Notes as contemplated by this Agreement.
(h) The Company is not, and, after
giving effect to the offering and sale of the Senior Notes and the
application of the proceeds thereof as described in the Time of
Sale Information or the Prospectus, will not be, an
“investment company” or a company
“controlled” by an “investment company”
which is required to be registered under the Investment Company Act
of 1940, as amended.
(i) The Company is a
“well-known seasoned issuer”, and is not, and has not
been since the filing of the Registration Statement, an
“ineligible issuer”, both terms as defined in Rule 405
under the Securities Act. The Company has paid the registration fee
for this offering of Senior Notes pursuant to Rule 456(b)(1) under
the Securities Act or will pay such fees within the time period
required by such rule (without giving effect to the proviso
therein) and in any event prior to the Closing Date.
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3B. Representations and
Warranties of the Underwriters . Each of the Underwriters
represents and warrants to, and agrees with, the Company
that:
(a) In relation to each member state
of the European Economic Area which has implemented the Prospectus
Directive (as defined below), with effect from and including the
date on which the Prospectus Directive is implemented in that
member state, it has not made and will not make an offer of Senior
Notes to the public in that member state, except that they may,
with effect from and including such date, make an offer of Senior
Notes to the public in that member state (i) at any time to
legal entities which are authorized or regulated to operate in the
financial markets or, if not so authorized or regulated, whose
corporate purpose is solely to invest in securities; (ii) at
any time to any legal entity which has two or more of (1) an
average of at least 250 employees during the last financial year;
(2) a total balance sheet of more than €43,000,000 and
(3) an annual net turnover of more than €50,000,000, as
shown in its last annual or consolidated accounts; or (iii) at
any time in any other circumstances which do not require the
publication by the Company of a prospectus pursuant to Article 3 of
the Prospectus Directive.
For the purposes of the above, the
expression an “offer of Senior Notes to the public” in
relation to any Senior Notes in any member state means the
communication in any form and by any means of sufficient
information on the terms of the offer and the Senior Notes to be
offered so as to enable an investor to decide to acquire the Senior
Notes, as the same may be varied in that member state by any
measure implementing the Prospectus Directive in that member state
and the expression “Prospectus Directive” means
Directive 2003/71/EC and includes any relevant implementing measure
in that member state.
(b) It has only communicated or
caused to be communicated an invitation or inducement to engage in
investment activity (within the meaning of Section 21 of the
Financial Services and Markets Act 2000) in connection with the
issue or sale of the Senior Notes in circumstances in which
Section 21(1) of such Act does not apply to the Company and it
has complied and will comply with all applicable provisions of such
Act with respect to anything done by them in relation to any Senior
Notes in, from or otherwise involving the United
Kingdom.
(c) Except for the Final Term Sheet
and any Issuer Free Writing Prospectus listed on Schedule VI or
otherwise approved in writing in advance by the Representatives
pursuant to Section 3A(c) above, it has not made and will not
make, unless approved in writing in advance by the Company and the
Representatives, any offer relating to the Senior Notes that would
constitute a “free writing prospectus” (as defined in
Rule 405 under the Securities Act and referred to herein as a Free
Writing Prospectus) that would be required to be filed with the
Commission.
(d) [Intentionally
omitted].
(e) It will, pursuant to reasonable
procedures developed in good faith, retain copies of each Free
Writing Prospectus used or referred to by it, in accordance with
Rule 433 under the Securities Act.
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(f) It is not subject to any pending
proceeding under Section 8A of the Securities Act with respect
to the offering (and will promptly notify the Company if any such
proceeding is initiated against it during the period of time after
the first date of the public offering of the Senior Notes that a
prospectus relating to the Senior Notes is required by law to be
delivered (or required to be delivered but for Rule 172 under the
Securities Act) in connection with sales of the Senior Notes by an
Underwriter or dealer (the Prospectus Delivery Period)). Whether
the Prospectus Delivery Period is ongoing for purposes of this
Section 3B(f) shall be determined by the opinion of Troutman
Sanders LLP.
4. Purchase and Public
Offering . On the basis of the representations and warranties
herein contained, but subject to the terms and conditions in this
Agreement set forth, the Company agrees to sell to each of the
Underwriters, and each Underwriter agrees, severally and not
jointly, to purchase from the Company, at the price, place and time
hereinafter specified, the principal amount of the Senior Notes set
forth opposite the name of such Underwriter in Schedule I hereto.
The Underwriters agree to make a public offering of their
respective Senior Notes specified in Schedule I hereto at the
initial public offering price specified in Schedule II hereto. It
is understood that after such initial offering the several
Underwriters reserve the right to vary the offering price and
further reserve the right to withdraw, cancel or modify any
subsequent offering without notice.
The Company shall not be obligated
to deliver any of the Senior Notes, except upon payment for all of
the Senior Notes to be purchased on the Closing Date.
5. Time and Place of Closing
. Delivery of the certificate(s) for the Senior Notes and payment
therefor by the Representatives for the accounts of the several
Underwriters shall be made at the time, place and date specified in
Schedule II or such other time, place and date as the
Representatives and the Company may agree upon in writing, and
subject to the provisions of Section 10 hereof. The hour and
date of such delivery and payment are herein called the
“Closing Date.” On the Closing Date, the Company,
through the facilities of The Depository Trust Company (DTC), shall
deliver or cause to be delivered a securities entitlement with
respect to the Senior Notes to the Representatives for the accounts
of each Underwriter against payment of the purchase price by wire
transfer of same day funds to a bank account designated by the
Company. Time shall be of the essence, and delivery at the time and
place specified pursuant to this Agreement is a further condition
of the obligation of each Underwriter hereunder. Upon delivery, the
Senior Notes shall be registered in the name of Cede &
Co., as nominee for DTC.
6. Covenants of the Company .
The Company agrees that:
(a) The Company will file the final
Prospectus with the Commission within the time periods specified by
Rule 424(b) and Rule 430B under the Securities Act; will prepare a
final term sheet, substantially in the form of Schedule VI hereto
(the Final Term Sheet) and file such Final Term Sheet in compliance
with Rule 433(d) under the Securities Act; will file any Issuer
Free Writing Prospectus to the extent required by Rule 433 under
the Securities Act; and will file promptly all reports and any
definitive proxy or information statements required to be filed by
the Company with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act after the date of
the
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Prospectus and within the Prospectus
Delivery Period. The Company will pay the registration fees for
this offering within the time period required by Rule 456(b)(i)
under the Securities Act and, in any event, prior to the Closing
Date.
(b) If the Representatives so
request, the Company, on or prior to the Closing Date, will deliver
to the Representatives conformed copies of the Registration
Statement as originally filed, including all exhibits, any
Preliminary Prospectus, the Final Term Sheet, any Issuer Free
Writing Prospectus, the Prospectus and all amendments and
supplements to each such document, in each case as soon as
available and in such quantities as are reasonably requested by the
Representatives. The Representatives will be deemed to have made
such a request for copies for each of the several Underwriters and
Troutman Sanders LLP, counsel to the Underwriters, with respect to
any such documents that are not electronically available through
the Commission’s EDGAR filing system.
(c) The Company will pay all
expenses in connection with (i) the preparation and filing by
it of the Registration Statement, any Preliminary Prospectus, the
Final Term Sheet, any Issuer Free Writing Prospectus and the
Prospectus, (ii) the preparation, issuance and delivery of the
Senior Notes, (iii) any fees and expenses of the Trustee and
(iv) the printing and delivery (by first class mail) to the
Underwriters, in reasonable quantities, of copies of the
Registration Statement, any Preliminary Prospectus, the Final Term
Sheet, any Issuer Free Writing Prospectus and the Prospectus (each
as originally filed and as subsequently amended). In addition, the
Company will pay the reasonable out-of-pocket fees and
disbursements of the Underwriters’ outside counsel, Troutman
Sanders LLP, in connection with the qualification of the Senior
Notes under state securities or blue sky laws or investment laws
(if and to the extent such qualification is required by the
Underwriters or the Company).
(d) If, during the time when a
prospectus relating to the Senior Notes is required to be delivered
under the Securities Act, any event occurs as a result of which the
Prospectus, the Final Term Sheet or any Issuer Free Writing
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, the Final Term
Sheet or any Issuer Free Writing Prospectus to comply with the
Securities Act, the Company promptly will (i) notify the
Underwriters through the Representatives to suspend solicitation of
purchases of the Senior Notes and (ii) at its expense, prepare
and file with the Commission an amendment or supplement which will
correct such statement or omission or an amendment which will
effect such compliance. During the period specified above, the
Company will continue to prepare and file with the Commission on a
timely basis all documents or amendments required under the
Securities Exchange Act and the applicable rules and regulations of
the Commission thereunder; provided, that the Company shall not
file such documents or amendments without also furnishing copies
thereof to the Representatives and Troutman Sanders LLP. Any such
documents or amendments which are electronically available through
the Commission’s EDGAR filing system shall be deemed to have
been furnished by the Company to the Representatives and Troutman
Sanders LLP.
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(e) The Company will advise the
Representatives promptly of any proposal to amend or supplement the
Registration Statement or the Prospectus and will afford the
Representatives a reasonable opportunity to comment on any such
proposed amendment or supplement prior to filing; and the Company
will also advise the Representatives promptly of the filing of any
such amendment or supplement, of the institution by the Commission
of any stop order proceedings in respect of the Registration
Statement or of any part thereof, or of receipt from the Commission
of any notice of objection to the use of the Registration Statement
or any supplement or amendment thereto pursuant to Rule 401(g)(2)
under the Securities Act, and will use its best efforts to prevent
the issuance of any such stop order or any such notice of objection
and to obtain as soon as possible their lifting, if
issued.
(f) 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 (in reasonable detail,
in form complying with the provisions of Rule 158 under the
Securities Act and which need not be audited), covering a period of
at least 12 months beginning within three months after the
“effective date” (as defined in Rule 158 under the
Securities Act) of the Registration Statement, which earnings
statement shall satisfy the requirements of Section 11(a) of
the Securities Act.
(g) The Company will furnish such
information as may be lawfully required and otherwise cooperate in
qualifying the Senior Notes for offer and sale under the securities
or blue sky laws of such jurisdictions as the Representatives may
designate; provided, however, that the Company shall not be
required in any state to qualify as a 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 of
Troutman Sanders LLP, who is acting as counsel for the Underwriters
(exclusive of fees and disbursements of Troutman Sanders LLP which
are to be paid as set forth in Section 6(c)), shall be paid by
the Underwriters; provided, however, that if this Agreement is
terminated in accordance with the provisions of Sections 7 or 8
hereof, the Company shall reimburse the Representatives for the
account of the Underwriters for the amount of such fees and
disbursements.
(i) During the period beginning on
the date of this Agreement and continuing to and including the
Closing Date, the Company will not, without the prior written
consent of the Representatives, directly or indirectly, sell or
offer to sell or otherwise dispose of any Senior Notes or any
security convertible into or exchangeable for Senior Notes or any
debt securities substantially similar to Senior Notes (except for
the Senior Notes issued pursuant to this Agreement).
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7. Conditions of
Underwriters’ Obligations; Termination by the
Underwriters.
(a) The obligations of the
Underwriters to purchase and pay for the Senior Notes on the
Closing Date shall be subject to the following
conditions:
(i) No stop order suspending the
effectiveness of the Registration Statement shall be in effect on
the Closing Date and no proceedings for that purpose shall be
pending before or, to the knowledge of the Company, threatened by
the Commission on such date. The Representatives shall have
received, prior to payment for the Senior Notes, a certificate
dated the Closing Date and signed by the President or any Vice
President of the Company to the effect that no such stop order is
in effect and that no proceedings for such purpose are pending
before or, to the knowledge of the Company, threatened by the
Commission.
(ii) The relevant order or orders of
the State Corporation Commission of Virginia authorizing the
issuance and sale of the Senior Notes, a copy of which has been
provided to the Representatives, shall be in full force and
effect.
(iii) On the Closing Date the
Representatives shall receive, on behalf of the several
Underwriters, the opinions of Troutman Sanders LLP, counsel to the
Underwriters, McGuireWoods LLP, counsel to the Company, and the
Company’s General Counsel, substantially in the forms
attached hereto as Schedules III, IV and V,
respectively.
(iv) The Representatives shall have
received from Deloitte & Touche LLP on the date of this
Agreement and on the Closing Date letters addressed to the
Representatives containing statements and information of the type
ordinarily included in accountants’ SAS 72 “comfort
letters” to underwriters with respect to the financial
statements and certain financial information contained in or
incorporated by reference into the Time of Sale Information or the
Prospectus, including any pro forma financial
information.
(v) Subsequent to the execution of
this Agreement and prior to the Closing Date, (A) except as
reflected in, or contemplated by, the Registration Statement, the
Time of Sale Information or the Prospectus (exclusive of amendments
or supplements after the date hereof), there shall not have
occurred (1) any change in the senior debt securities of the
Company of the same class as the Senior Notes (other than a
decrease in the aggregate principal amount thereof outstanding),
(2) any material adverse change in the general affairs,
financial condition or earnings of the Company and its subsidiaries
taken as a whole or (3) any material transaction entered into
by the Company other than a transaction in the ordinary course of
business, the effect of which in each such case in the reasonable
judgment of the Representatives is so material and so adverse that
it makes it impracticable to proceed with the public offering or
delivery of the Senior Notes on the terms and in the manner
contemplated in the Time of Sale Information, the Prospectus and
this Agreement, and (B) there shall not have occurred
(1) a downgrading in the rating accorded the Company’s
senior
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unsecured notes, or securities that
are pari passu to the Company’s senior unsecured
notes, by any “nationally recognized statistical rating
organization” (as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the Securities Act) and no such
organization shall have given any notice of any intended or
potential downgrading or of any review for a possible change with
possible negative implications in its ratings of such securities,
(2) any general suspension of trading in securities on the New
York Stock Exchange or any limitation on prices for such trading or
any restrictions on the distribution of securities established by
the New York Stock Exchange or by the Commission or by
