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Exhibit 1.1
VIRGINIA ELECTRIC AND
POWER COMPANY
$600,000,000 2008 Series A
5.40% Senior Notes due 2018
UNDERWRITING
AGREEMENT
April 14,
2008
Barclays Capital Inc.
Greenwich Capital Markets,
Inc.
Wachovia Capital Markets, LLC
as Representatives for the
Underwriters
listed in Schedule I
hereto
c/o Barclays Capital Inc.
200 Park Avenue
New York, New York 10166
Greenwich Capital Markets,
Inc.
600 Steamboat Road
Greenwich, Connecticut 06830
Wachovia Capital Markets, LLC
One Wachovia Center, DC-7
301 South College Street
Charlotte, North Carolina
28288-0602
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 2008 Series A 5.40% Senior Notes due 2018 (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 The Bank of New York
(successor to JPMorgan Chase Bank, N.A. (formerly known as The
Chase Manhattan Bank)), as Trustee (the Trustee), as previously
supplemented and as further supplemented by an Eighteenth
Supplemental Indenture dated as of April 1, 2008
(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 Closing Date (as defined below), 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 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
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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 2:45 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, the Issuer Free Writing Prospectuses (as
supplemented by and taken together with 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, any Issuer Free
Writing Prospectus, the 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
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Representatives for use in
the Registration Statement, any Issuer Free Writing Prospectus, 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 the Prospectus if the statement has been
modified or superseded by any statement in a subsequently filed
Incorporated Document or in the Registration Statement or the
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) If, at any time following
issuance of an Issuer Free Writing Prospectus, any event occurred
or occurs as a result of which such Issuer Free Writing Prospectus
conflicted or conflicts with the information contained in the
Registration Statement, the Preliminary Prospectus or the
Prospectus, the Company (i) has promptly notified or will
promptly notify the Underwriters through the Representatives of
such conflict and, (ii) at its expense, has promptly amended
or supplemented or will promptly amend or supplement such Issuer
Free Writing Prospectus to eliminate or correct such conflict;
provided, that the foregoing representations and warranties in this
Section 3A(d) shall not apply to conflicts arising from
statements in or omissions from any Issuer Free Writing 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 such Issuer Free
Writing Prospectus.
(e) 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
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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.
(f) 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.
(g) There are no Significant
Subsidiaries of the Company as such term is defined in Rule 1-02 of
Regulation S-X.
(h) 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.
(i) 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.
(j) 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, prior to the
publication of a prospectus in relation to the Senior Notes which
has been approved by the competent authority in that member state
or, where appropriate, approved in another member state and
notified to the competent authority in that member state, all in
accordance with the Prospectus Directive, except that it may, with
effect from and including such date, make an offer of Senior Notes
to the public in that member state at any time (i) 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) 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; (iii) to fewer than 100
natural or legal persons (other than qualified investors as defined
in the Prospectus Directive) subject to obtaining the prior consent
of the representatives for any such offer; or (iv) 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 and will only communicate or cause 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) received by it 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 it in relation to any Senior
Notes in, from or otherwise involving the United
Kingdom.
(c) It has not offered or
sold, and will not offer or sell, any Senior Notes by means of any
document other than (i) in circumstances which do not
constitute an offer to the public within the meaning of the
Companies Ordinance (Cap. 32, Laws of Hong Kong),
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or (ii) to
“professional investors” within the meaning of the
Securities and Futures Ordinance (Cap. 571, Laws of Hong Kong) and
any rules made thereunder, or (iii) in other circumstances
which do not result in the document being a
“prospectus” within the meaning of the Companies
Ordinance (Cap. 32, Laws of Hong Kong), and no advertisement,
invitation or document relating to the Senior Notes may be issued
or may be in the possession of any person for the purpose of issue
(in each case whether in Hong Kong or elsewhere), which is directed
at, or the contents of which are likely to be accessed or read by,
the public in Hong Kong (except if permitted to do so under the
laws of Hong Kong) other than with respect to Senior Notes which
are or are intended to be disposed of only to persons outside Hong
Kong or only to “professional investors” within the
meaning of the Securities and Futures Ordinance (Cap. 571, Laws of
Hong Kong) and any rules made thereunder.
(d) The Senior Notes have not
been and will not be registered under the Securities and Exchange
Law of Japan (the Securities and Exchange Law) and each Underwriter
hereby represents and agrees that it has not offered or sold, and
it will not offer or sell any Senior Notes, directly or indirectly,
in Japan or to, or for the benefit of, any resident of Japan (which
term as used herein means any person resident in Japan, including
any corporation or other entity organized under the laws of Japan),
or to others for re-offering or resale, directly or indirectly, in
Japan or to a resident of Japan, except pursuant to an exemption
from the registration requirements of, and otherwise in compliance
with, the Securities and Exchange Law and any other applicable
laws, regulations and ministerial guidelines of Japan.
(e) The Prospectus Supplement
has not been registered as a prospectus with the Monetary Authority
of Singapore. Accordingly, the Prospectus Supplement and any other
document or material in connection with the offer or sale, or
invitation for subscription or purchase, of the Senior Notes may
not be circulated or distributed, nor may the Senior Notes be
offered or sold, or be made the subject of an invitation for
subscription or purchase, whether directly or indirectly, to
persons in Singapore other than (i) to an institutional
investor under Section 274 of the Securities and Futures Act,
Chapter 289 of Singapore (the SFA), (ii) to a relevant person,
or any person pursuant to Section 275(1A), and in accordance
with the conditions, specified in Section 275 of the SFA or
(iii) otherwise pursuant to, and in accordance with the
conditions of, any other applicable provision of the
SFA.
Where the Senior Notes are
subscribed or purchased under Section 275 by a relevant person
which is: (a) a corporation (which is not an accredited
investor) the sole business of which is to hold investments and the
entire share capital of which is owned by one or more individuals,
each of whom is an accredited investor; or (b) a trust (where
the trustee is not an accredited investor) whose sole purpose is to
hold investments and each beneficiary is an accredited investor,
shares, debentures and units of shares and debentures of that
corporation or the beneficiaries’ rights and interest in that
trust shall not be transferable for 6 months after that corporation
or that trust has acquired the Senior Notes under
Section 275 except: (1) to an institutional investor
under Section 274 of the SFA or to a relevant person, or any
person pursuant to Section 275(1A), and in accordance with the
conditions, specified in Section 275 of the SFA;
(2) where no consideration is given for the transfer; or
(3) by operation of law.
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(f) 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 under Rule 433 under the Securities Act.
Notwithstanding the foregoing, it may use a free writing prospectus
that is (i) the Final Term Sheet; (ii) an Issuer Free
Writing Prospectus listed on Schedule VI or otherwise approved in
writing in advance by the Representatives pursuant to
Section 3A(c) above or (iii) one or more term sheets
relating to the Senior Notes that do not contain substantive
changes from or additions to the Final Term Sheet. The
Representatives and the Company agree that any such term sheets
described in clause (iii) above will not constitute Issuer
Free Writing Prospectuses for purposes of this
Agreement.
(g) 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.
(h) 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(h) 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
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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 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 Troutman Sanders LLP, counsel to the Underwriters,
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).
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(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 (i) 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 (ii) 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 (y) notify the Underwriters through the Representatives
to suspend solicitation of purchases of the Senior Notes and,
(z) 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.
(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.
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(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).
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
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