Exhibit 1
VIRGINIA ELECTRIC AND POWER COMPANY
2001 Series A 5.75% Senior Notes, Due March 31, 2006
UNDERWRITING AGREEMENT
March 22, 2001
▇▇▇▇▇▇ Brothers Inc.
as Representative for the Underwriters
listed in Schedule I hereto
c/▇ ▇▇▇▇▇▇ Brothers Inc.
Three World Financial Center
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
The undersigned, Virginia Electric and Power Company (Dominion Virginia
Power), hereby confirms its agreement with the several Underwriters named in
Schedule I hereto (the Agreement) with respect to the sale to the several
Underwriters of certain of its Senior Notes (the Senior Notes) specified in
Schedule II hereto, and the public offering thereof by the several Underwriters,
upon the terms specified in Schedule II hereto.
1. Underwriters and Representatives. The term "Underwriters" as used
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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. 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
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principal amount of the Senior Notes, the initial public offering price of the
Senior Notes, the purchase price to be paid by the Underwriters, and any
concession from the initial public offering price to be allowed to dealers or
brokers, and sets forth the date, time and manner of delivery of the Senior
Notes and payment therefor. Schedule II also specifies (to the extent not set
forth in the Registration Statement and Prospectus referred to below) the terms
and provisions for the purchase of such Senior Notes. The Senior Notes will be
issued under Dominion Virginia Power's Senior Indenture dated as of June 1, 1998
between Dominion Virginia Power and The Chase Manhattan Bank, as Trustee (the
Trustee), as previously supplemented, and as further supplemented by a Fifth
Supplemental Indenture dated as of March 1, 2001 (collectively, the Indenture).
3. Representations and Warranties of Dominion Virginia Power. Dominion
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Virginia Power represents and warrants to, and agrees with, the Underwriters
that:
(a) A registration statement, No. 333-38510 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. The registration
statement, including all exhibits thereto, as amended through the date
hereof, is hereinafter referred to as the "Registration Statement"; the
prospectus relating to the Senior Notes included in the Registration
Statement, which prospectus is now proposed to be supplemented by a
prospectus supplement relating to the Senior Notes to be filed with the
Commission under the Securities Act, as completed and as so supplemented,
is hereinafter referred to as the "Prospectus". As used herein, the terms
"Registration Statement" and "Prospectus" include all documents (including
any Current Report on Form 8-K) incorporated therein by reference, and
shall include any documents (including any Current Report on Form 8-K)
filed after the date of such Registration Statement or Prospectus and
incorporated therein by reference from the date of filing of such
incorporated documents (collectively, the Incorporated Documents).
(b) No order suspending the effectiveness of the Registration
Statement or otherwise preventing or suspending the use of the Prospectus
has been issued by the Commission and is in effect and no proceedings for
that purpose are pending before or, to the knowledge of Dominion Virginia
Power, 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 (the Rules and Regulations) and, neither the Registration
Statement on the date it was declared effective (the Effective Date) nor
the Prospectus on the date hereof 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
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Act, the Trust Indenture Act and the Rules and Regulations, and neither of
such documents will include any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to
make the statements therein not misleading; provided, that the foregoing
representations and warranties in this Section 3(b) shall not apply to
statements in or omissions from the Registration Statement or the
Prospectus made in reliance upon information furnished herein or in writing
to Dominion Virginia Power by the Underwriters or on the Underwriters'
behalf through the Representatives for use in the Registration Statement or
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 the foregoing representations and warranties are
given on the basis that any statement contained in an Incorporated Document
shall be deemed not to be contained in the Registration Statement or
Prospectus if the statement has been modified or superseded by any
statement in a subsequently filed Incorporated Document or in the
Registration Statement or Prospectus or in any amendment or supplement
thereto.
(c) Except as reflected in, or contemplated by, the Registration
Statement and 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 and 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 Dominion Virginia Power and its
subsidiaries taken as a whole, financial or otherwise (a Material Adverse
Effect). Dominion Virginia Power and its subsidiaries taken as a whole
have no material contingent financial obligation which is not disclosed in
the Registration Statement and the Prospectus.
(d) Deloitte & Touche LLP who have certified certain of Dominion
Virginia Power's financial statements filed with the Commission and
incorporated by reference in the Registration Statement are independent
public accountants as required by the Securities Act and the rules and
regulations relating to the Securities Act.
(e) There are no Significant Subsidiaries of Dominion Virginia Power
as such term is defined in Rule 1-02 of Regulation S-X (when such Rule is
applied to the pro forma fiscal year ended December 31, 2000).
(f) The execution, delivery and performance of this Agreement, the
Indenture and the Senior Notes and 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 Dominion Virginia Power 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 Dominion Virginia Power 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 Dominion Virginia Power 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
Dominion Virginia Power or
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any subsidiary is subject (except for such conflicts, breaches or defaults
or liens, charges or encumbrances that would not have a Material Adverse
Effect and except that any assets acquired as described in the Prospectus
under "Use of Proceeds" will become subject to the lien of Dominion
Virginia Power's first and refinancing mortgage bonds indenture), nor will
such action result in any violation of the provisions of the charter or
bylaws of Dominion Virginia Power 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 Dominion Virginia Power or any subsidiary or any
of their respective properties, assets or operations, and Dominion Virginia
Power has full power and authority to authorize, issue and sell the Senior
Notes as contemplated by this Agreement.
(g) Dominion Virginia Power 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 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.
4. Public Offering. On the basis of the representations and warranties
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herein contained, but subject to the terms and conditions in this Agreement set
forth, Dominion Virginia Power agrees to sell to each of the Underwriters, and
each Underwriter agrees, severally and not jointly, to purchase from Dominion
Virginia Power, 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.
5. Time and Place of Closing. Delivery of the Senior Notes to, and
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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 Dominion Virginia
Power may agree upon in writing, and subject to the provisions of Section 10
hereof. The hour and date of such delivery and payment are herein called the
"Closing Date". Unless otherwise specified in Schedule II hereto, payment for
the Senior Notes shall be made by wire transfer of immediately available funds
to Dominion Virginia Power's account on the Closing Date against delivery of the
Senior Notes, in fully registered form, registered in the name of Cede & Co., as
nominee for The Depository Trust Company. The certificate(s) for the Senior
Notes will be
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made available at the location specified on Schedule II for examination by the
Representatives not later than 12:00 noon, New York time, on the last business
day prior to the Closing Date.
6. Covenants of Dominion Virginia Power. Dominion Virginia Power agrees
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that:
(a) If the Representatives so request, Dominion Virginia Power, 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 related preliminary prospectus supplement, the Prospectus and
all amendments and supplements to each such document, in each case as soon
as available and in such quantities as are reasonably requested by the
Representatives. The Representatives will be deemed to have made such a
request for copies for each of the several Underwriters and ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ & Valentine LLP, counsel to the Underwriters, with respect to
any such documents that are not electronically available through the
Commission's ▇▇▇▇▇ filing system.
(b) Dominion Virginia Power will pay all expenses in connection with
(i) the preparation and filing by it of the Registration Statement and
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 to the Underwriters in reasonable quantities of copies of the
Registration Statement and the Prospectus (each as originally filed and as
subsequently amended). Dominion Virginia Power also will pay all taxes, if
any, on the issuance of the Senior Notes. In addition, Dominion Virginia
Power will pay the reasonable out of pocket fees and disbursements of
Underwriters' outside counsel, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ & Valentine 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 Dominion Virginia Power).
(c) 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 as then amended or supplemented
would include an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the Securities
Act, Dominion Virginia Power 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, Dominion Virginia Power 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 Dominion Virginia Power shall not
file such documents or amendments without also furnishing copies thereof to
the Representatives and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ & Valentine LLP. Any such
documents or amendments which are electronically available through the
Commission's
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▇▇▇▇▇ filing system shall be deemed to have been furnished by Dominion
Virginia Power to the Representatives and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ & Valentine
LLP.
(d) Dominion Virginia Power 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; and Dominion Virginia
Power will also advise the Representatives promptly of the filing of any
such amendment or supplement and of the institution by the Commission of
any stop order proceedings in respect of the Registration Statement or of
any part thereof and will use its best efforts to prevent the issuance of
any such stop order and to obtain as soon as possible its lifting, if
issued.
(e) Dominion Virginia Power will make generally available to its
security holders, as soon as it is practicable to do so, an earnings
statement of Dominion Virginia Power (which need not be audited) in
reasonable detail, covering a period of at least 12 months beginning within
three months after the Effective Date of the Registration Statement, which
earnings statement shall satisfy the requirements of Section 11(a) of the
Securities Act.
(f) Dominion Virginia Power will furnish such proper 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
states as the Representatives may designate; provided, however, that
Dominion Virginia Power 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.
(g) Fees and disbursements of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ & Valentine LLP,
who are acting as counsel for the Underwriters (exclusive of fees and
disbursements of such counsel which are to be paid as set forth in Section
6(b)), shall be paid by the Underwriters; provided, however, that if this
Agreement is terminated in accordance with the provisions of Sections 7 or
8 hereof, Dominion Virginia Power shall reimburse the Representatives for
the account of the Underwriters for the amount of such fees and
disbursements.
(h) During the period beginning on the date of this Agreement and
continuing to and including the Closing Date, Dominion Virginia Power 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 the Senior Notes or
any debt securities substantially similar to the Senior Notes (except for
the Senior Notes issued pursuant to this Agreement).
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7. Conditions of Underwriters' Obligations; Termination by the
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Underwriters.
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(a) The obligations of the Underwriters to purchase and pay for the
Senior Notes 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 Dominion Virginia Power 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 Dominion Virginia Power 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 Dominion Virginia Power, threatened by the Commission.
(ii) The relevant order or orders of the State Corporation
Commission of Virginia authorizing the issuance of the Senior Notes, a
copy of which has been provided to the Representatives, shall remain
in full force and effect.
(iii) On the Closing Date the Representatives shall receive, on
behalf of the several Underwriters, the opinions of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ & Valentine LLP, counsel to the Underwriters, McGuireWoods LLP,
counsel to Dominion Virginia Power, and Dominion Virginia Power's
General Counsel, substantially in the forms attached hereto as
Schedules III, IV and V, respectively, and all in form and substance
satisfactory to the Representatives.
(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 Prospectus, including the 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 and 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 Dominion Virginia Power 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 Dominion Virginia Power and its subsidiaries taken as a whole or
(3) any material transaction entered into by Dominion Virginia Power
other than a transaction in the ordinary course of business, the
effect of which in each such case in the reasonable
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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
Prospectus and this Agreement, and (B) there shall not have occurred
(1) a downgrading in the rating accorded Dominion Virginia Power's
senior unsecured notes, or securities that are pari passu to Dominion
Virginia Power'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 any federal or state
agency or by the decision of any court, (3) a suspension of trading of
any securities of Dominion Virginia Power or of Dominion Resources,
Inc. on the New York Stock Exchange, (4) a banking moratorium declared
either by federal or New York State authorities or (5) any outbreak or
escalation of major hostilities in which the United States is
involved, any declaration of war by the United States Congress or any
other substantial national or international calamity or crisis
resulting in the declaration of a national emergency, or any material
adverse change in the financial markets, the effect of which outbreak,
escalation, declaration, calamity, crisis or material adverse change,
in the reasonable judgment of the Representatives, 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
Prospectus and in this Agreement.
(vi) On the Closing Date, the representations and warranties of
Dominion Virginia Power in this Agreement shall be true and correct as
if made on and as of such date, and Dominion Virginia Power shall have
performed all obligations and satisfied all conditions required of it
under this Agreement; and, on the Closing Date, the Representatives
shall have received a certificate to such effect signed by the
President or any Vice President of Dominion Virginia Power.
(vii) All legal proceedings to be taken in connection with the
issuance and sale of the Senior Notes shall have been satisfactory in
form and substance to ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ & Valentine LLP.
(b) In case any of the conditions specified above in Section 7(a)
shall not have been fulfilled, this Agreement may be terminated by the
Representatives upon mailing or delivering written notice thereof to
Dominion Virginia Power; provided, however, that in case the conditions
specified in subsections 7(a)(v) and (vi) shall not have been fulfilled,
this Agreement may not be so terminated by the Representatives unless
Underwriters who have agreed to purchase in the aggregate 50% or more of
the aggregate principal amount of the
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Senior Notes shall have consented to such termination and the aforesaid
notice shall so state. Any such termination shall be without liability of
any party to any other party except as otherwise provided in Section 9 and
Sections 6(b), 6(g) and 7(c) hereof.
(c) If this Agreement shall be terminated by the Representatives
pursuant to Section 7(b) above or because of any failure or refusal on the
part of Dominion Virginia Power to comply with the terms or to fulfill any
of the conditions of this Agreement, or if for any reason Dominion Virginia
Power shall be unable to perform its obligations under this Agreement, then
in any such case, Dominion Virginia Power will reimburse the Underwriters,
severally, for all out-of-pocket expenses (in addition to the fees and
disbursements of their outside counsel as provided in Section 6(g))
reasonably incurred by such Underwriters in connection with this Agreement
or the offering contemplated hereunder and, upon such reimbursement,
Dominion Virginia Power shall be absolved from any further liability
hereunder, except as provided in Section 6(b) and Section 9.
8. Conditions of the Obligation of Dominion Virginia Power. The
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obligation of Dominion Virginia Power to deliver the Senior Notes shall be
subject to the conditions set forth in the first sentence of Section 7(a)(i) and
in Section 7(a)(ii). In case such conditions shall not have been fulfilled, this
Agreement may be terminated by Dominion Virginia Power by mailing or delivering
written notice thereof to the Representatives. Any such termination shall be
without liability of any party to any other party except as otherwise provided
in Sections 6(b), 6(g), 9 and 10 hereof.
9. Indemnification and Contribution. (a) Dominion Virginia Power agrees
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to indemnify and hold harmless each Underwriter and each person who controls any
Underwriter within the meaning of Section 15 of the Securities Act or Section
20(a) of the Securities Exchange Act, against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them may
become subject under the Securities Act, the Securities Exchange Act, or any
other statute or common law and to reimburse each such Underwriter and
controlling person for any legal or other expenses (including, to the extent
hereinafter provided, reasonable outside counsel fees) incurred by them in
connection with investigating or defending any such losses, claims, damages, or
liabilities, or in connection with defending any actions, insofar as such
losses, claims, damages, liabilities, expenses or actions arise out of or are
based upon any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or the Prospectus, or in either such
document as amended or supplemented (if any amendments or supplements thereto
shall have been furnished), or any preliminary Prospectus (if and when used
prior to the date hereof), or the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading; provided that the foregoing indemnity
agreement, insofar as it relates to any preliminary Prospectus, shall not inure
to the benefit of any Underwriter (or to the benefit of any person who controls
such Underwriter) on account of any losses, claims, damages or liabilities
arising out of the sale of any of the Senior Notes by such Underwriter to any
person if it shall be established that a copy of the Prospectus, excluding any
documents incorporated by reference (as supplemented or amended, if Dominion
Virginia Power
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shall have made any supplements or amendments which have been furnished to the
Representatives), shall not have been sent or given by or on behalf of such
Underwriter to such person at or prior to the written confirmation of the sale
to such person in any case where such delivery is required by the Securities Act
and Dominion Virginia Power satisfied its obligations pursuant to Section 6(a)
hereof, if the misstatement or omission leading to such loss, claim, damage or
liability was corrected in the Prospectus (excluding any documents incorporated
by reference) as amended or supplemented, and such correction would have cured
the defect giving rise to such loss, claim, damage, or liability; and provided
further, however, that the indemnity agreement contained in this Section 9(a)
shall not apply to any such losses, claims, damages, liabilities, expenses or
actions arising out of or based upon any such untrue statement or alleged untrue
statement, or any such omission or alleged omission, if such statement or
omission was made in reliance upon information furnished herein or otherwise in
writing to Dominion Virginia Power by or on behalf of any Underwriter for use in
the Registration Statement or any amendment thereto, in the Prospectus or any
supplement thereto, or in any preliminary Prospectus. The indemnity agreement of
Dominion Virginia Power contained in this Section 9(a) and the representations
and warranties of Dominion Virginia Power contained in Section 3 hereof shall
remain operative and in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter or any such controlling person, and
shall survive the delivery of the Senior Notes.
(b) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless Dominion Virginia Power, its officers and directors, and each
person who controls any of the foregoing within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Securities Exchange Act, against any and
all losses, claims, damages or liabilities, joint or several, to which they or
any of them may become subject under the Securities Act, the Securities Exchange
Act, or any other statute or common law and to reimburse each of them for any
legal or other expenses (including, to the extent hereinafter provided,
reasonable outside counsel fees) incurred by them in connection with
investigating or defending any such losses, claims, damages or liabilities or in
connection with defending any actions, insofar as such losses, claims, damages,
liabilities, expenses or actions arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus, or in either such document as amended
or supplemented (if any amendments or supplements thereto shall have been
furnished), or any preliminary Prospectus (if and when used prior to the date
hereof), or the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, if such statement or omission was made in reliance upon information
furnished herein or in writing to Dominion Virginia Power by or on behalf of
such Underwriter for use in the Registration Statement or the Prospectus or any
amendment or supplement to either thereof, or any preliminary Prospectus. The
indemnity agreement of the respective Underwriters contained in this Section
9(b) shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of Dominion Virginia Power or any such
controlling person, and shall survive the delivery of the Senior Notes.
(c) Dominion Virginia Power and each of the Underwriters agree that, upon
the receipt of notice of the commencement of any action against Dominion
Virginia Power or any of its
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officers or directors, or any person controlling Dominion Virginia Power, or
against such Underwriter or controlling person as aforesaid, in respect of which
indemnity may be sought on account of any indemnity agreement contained herein,
it will promptly give written notice of the commencement thereof to the party or
parties against whom indemnity shall be sought hereunder, but the omission so to
notify such indemnifying party or parties of any such action shall not relieve
such indemnifying party or parties from any liability which it or they may have
to the indemnified party otherwise than on account of such indemnity agreement.
In case such notice of any such action shall be so given, such indemnifying
party shall be entitled to participate at its own expense in the defense or, if
it so elects, to assume (in conjunction with any other indemnifying parties) the
defense of such action, in which event such defense shall be conducted by
counsel chosen by such indemnifying party (or parties) and satisfactory to the
indemnified party or parties who shall be defendant or defendants in such
action, and such defendant or defendants shall bear the fees and expenses of any
additional outside counsel retained by them; provided that, if the defendants
(including impleaded parties) in any such action include both the indemnified
party and the indemnifying party (or parties) and the indemnified party shall
have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to those
available to the indemnifying party (or parties), the indemnified party shall
have the right to select separate counsel to assert such legal defenses and to
participate otherwise in the defense of such action on behalf of such
indemnified party. The indemnifying party shall bear the reasonable fees and
expenses of outside counsel retained by the indemnified party if (i) the
indemnified party shall have retained such counsel in connection with the
assertion of legal defenses in accordance with the proviso to the preceding
sentence (it being understood, however, that the indemnifying party shall not be
liable for the expenses of more than one separate counsel (in addition to one
local counsel), representing the indemnified parties under Section 9(a) or 9(b),
as the case may be, who are parties to such action), (ii) the indemnifying party
shall have elected not to assume the defense of such action, (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the commencement of the action, or (iv) the indemnifying party
has authorized the employment of counsel for the indemnified party at the
expense of the indemnifying party. Notwithstanding the foregoing sentence, an
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent (such consent not to be unreasonably
withheld), but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened proceeding
in respect of which indemnification may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such a proceeding), unless
such settlement (x) includes an unconditional release of such indemnified party
from all liability on claims that are the subject matter of such proceeding and
(y) does not include a statement as to or an admission of fault, culpability or
failure to act by or on behalf of any indemnified party.
(d) If the indemnification provided for in Section 9(a) or 9(b) is
unavailable to or insufficient to hold harmless an indemnified party in respect
of any losses, claims, damages or
-11-
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative fault of Dominion Virginia Power, on the one hand, and of the
Underwriters, on the other, in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations, including
relative benefit. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact required to be
stated therein or necessary in order to make the statements therein not
misleading relates to information supplied by Dominion Virginia Power on the one
hand or by the Underwriters on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. Dominion Virginia Power and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this Section 9(d)
were determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to above in
this Section 9(d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this Section 9(d) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The Underwriters' obligations
under this Section 9(d) to contribute are several in proportion to their
respective underwriting obligations and not joint. The remedies provided for in
this Section 9 are not exclusive and shall not limit any rights or remedies
which may otherwise be available to any indemnified party at law or in equity.
10. Termination. If any one or more of the Underwriters shall fail or
-----------
refuse to purchase the Senior Notes which it or they have agreed to purchase
hereunder, and the aggregate principal amount of the Senior Notes which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
is not more than one-tenth of the aggregate principal amount of the Senior
Notes, then the other Underwriters shall be obligated severally in the
proportions which the principal amount of the Senior Notes set forth opposite
their respective names in Schedule I bears to the aggregate underwriting
obligations of all non-defaulting Underwriters, or in such other proportions as
the Underwriters may specify, to purchase the Senior Notes which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase. If any
Underwriter or Underwriters shall so fail or refuse to purchase Senior Notes and
the aggregate principal amount of the Senior Notes with respect to which such
default occurs is more than one-tenth of the aggregate principal amount of the
Senior Notes and arrangements satisfactory to the Underwriters and Dominion
Virginia Power for the purchase of such Senior Notes are not made within 36
hours after such default, this Agreement will terminate without liability on the
part of any non-defaulting Underwriter (except as provided in Section 6(g) and
Section 9) or of Dominion Virginia Power (except as provided in Section 6(b) and
Section 9). In any such case not involving a termination, either the
Representatives or Dominion Virginia Power shall have the right to postpone the
Closing
-12-
Date, but in no event for longer than seven days, in order that the required
changes, if any, in the Registration Statement and in the Prospectus or in any
other documents or arrangements may be effected. Any action taken under this
Section 10 shall not relieve any defaulting Underwriter from liability in
respect of any default of such Underwriter under this Agreement.
11. Representations, Warranties and Agreements to Survive Delivery. All
--------------------------------------------------------------
representations, warranties and agreements contained in this Agreement or
contained in certificates of officers of Dominion Virginia Power submitted
pursuant hereto shall remain operative and in full force and effect regardless
of any investigation made by or on behalf of any Underwriter or any controlling
person of any Underwriter, or by or on behalf of Dominion Virginia Power, and
shall survive delivery of the Senior Notes.
12. Miscellaneous. The validity and interpretation of this Agreement
-------------
shall be governed by the laws of the State of New York. This Agreement shall
inure to the benefit of Dominion Virginia Power, the Underwriters and, with
respect to the provisions of Section 9 hereof, each controlling person and each
officer and director of Dominion Virginia Power referred to in Section 9, and
their respective successors, assigns, executors and administrators. Nothing in
this Agreement is intended or shall be construed to give to any other person,
firm or corporation any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. The term
"successors" as used in this Agreement shall not include any purchaser, as such,
of any of the Senior Notes from any of the several Underwriters.
13. Notices. All communications hereunder shall be in writing and if to
-------
the Underwriters shall be mailed, faxed or delivered to the Representatives at
the address set forth on Schedule II hereto, or if to Dominion Virginia Power
shall be mailed, faxed or delivered to it, attention of Treasurer, Dominion
Virginia Power, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (facsimile number:
(▇▇▇) ▇▇▇-▇▇▇▇).
-13-
Please sign and return to us a counterpart of this letter, whereupon this
letter will become a binding agreement between Dominion Virginia Power and the
several Underwriters in accordance with its terms.
VIRGINIA ELECTRIC AND POWER COMPANY
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Financing Manager - Public Markets
-14-
The foregoing agreement is
hereby confirmed and accepted,
as of the date first above
written.
▇▇▇▇▇▇ BROTHERS INC.
acting individually and as Representative
of the Underwriters named in Schedule I hereto
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
----------------------------
Authorized Signatory
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Managing Director
-15-
SCHEDULE I
Principal Amount
of Senior Notes
Underwriter to be Purchased
----------- ----------------
▇▇▇▇▇▇ Brothers Inc. $420,000,000
Banc One Capital Markets, Inc. 90,000,000
First Union Securities, Inc. 90,000,000
------------
Total: $600,000,000
I-1
SCHEDULE II
Title of Senior Notes: 2001 Series A 5.75% Senior Notes Due March 31, 2006
Aggregate Principal Amount: $600,000,000
Initial Price to Public:
99.648% of the principal amount of the Senior Notes plus
accrued interest, if any, from the date of issuance
Initial Purchase Price to be paid by Underwriters:
99.048% of the principal amount of the Senior Notes
Time of Delivery: March 27, 2001, 10:00 A.M.
Closing Location: One ▇▇▇▇▇ Center
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
The Senior Notes will be available for inspection by the Representatives at:
One ▇▇▇▇▇ Center
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Address for Notices to the Underwriters:
▇▇▇▇▇▇ Brothers Inc.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Debt Capital Markets - Global Power Group
facsimile number: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy of any notice pursuant to Section 9(c) also sent to:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ & Valentine LLP
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: F. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇., Esquire
facsimile number: (▇▇▇) ▇▇▇-▇▇▇▇
II-1
SCHEDULE III
PROPOSED FORM OF OPINION
OF
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ & VALENTINE LLP
Bank of America Center
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: VIRGINIA ELECTRIC AND POWER COMPANY
2001 Series A 5.75% Senior Notes,
Due March 31, 2006
March 27, 2001
▇▇▇▇▇▇ Brothers Inc.
as Representative for the Underwriters
listed in Schedule I to the Underwriting Agreement
c/▇ ▇▇▇▇▇▇ Brothers
3 World Financial Center
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
We have acted as counsel for you in connection with arrangements for
the issuance by Virginia Electric and Power Company (Dominion Virginia Power) of
up to U.S. $600,000,000 aggregate principal amount of its 2001 Series A 5.75%
Senior Notes due March 31, 2006 (the Senior Notes) and the offering of the
Senior Notes by you pursuant to an Underwriting Agreement dated March 22, 2001
by and between you and Dominion Virginia Power (the Underwriting Agreement).
All terms not otherwise defined herein shall have the meanings set forth in the
Underwriting Agreement.
We have examined originals, or copies certified to our satisfaction of
such corporate records of Dominion Virginia Power, indentures, agreements and
other instruments, certificates of public officials, certificates of officers
and representatives of Dominion Virginia Power and of the Trustee, and other
documents, as we have deemed necessary as a basis for the opinions hereinafter
expressed. As to various questions of fact material to such opinions, we have,
when relevant facts were not independently established, relied upon
certifications by
III-1
officers of Dominion Virginia Power, the Trustee and other appropriate persons
and statements contained in the Registration Statement hereinafter mentioned.
All legal proceedings taken as of the date hereof in connection with the
transactions contemplated by the Underwriting Agreement have been satisfactory
to us.
In addition, we attended the closing held today at the offices of
McGuireWoods LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, at which Dominion
Virginia Power satisfied the conditions contained in Section 7 of the
Underwriting Agreement that are required to be satisfied as of the Closing Date.
Based upon the foregoing, and having regard to legal considerations
that we deem relevant, we are of the opinion that:
1. Dominion Virginia Power is a corporation duly incorporated and
existing as a corporation in good standing under the laws of Virginia, and has
the corporate power to transact its business as described in the Prospectus.
2. The Underwriting Agreement has been duly authorized by all
necessary corporate action and has been duly executed and delivered by Dominion
Virginia Power.
3. The Indenture has been duly authorized, executed and delivered by
Dominion Virginia Power and has been duly qualified under the Trust Indenture
Act and constitutes a valid and binding obligation of Dominion Virginia Power,
except as enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights generally or by general equitable principles (regardless of
whether enforcement is considered in a proceeding in equity or at law).
4. The Senior Notes have been duly authorized and executed by
Dominion Virginia Power and, when completed and authenticated by the Trustee in
accordance with, and in the form contemplated by, the Indenture and issued,
delivered and paid for as provided in the Underwriting Agreement, will have been
duly issued under the Indenture and will constitute valid and binding
obligations of Dominion Virginia Power entitled to the benefits provided by the
Indenture, except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally or by general equitable principles
(regardless of whether enforcement is considered in a proceeding in equity or at
law).
5. The Registration Statement (Reg. No. 333-38510) with respect to
the Senior Notes filed pursuant to the Securities Act, has become effective and
remains in effect at this date, and the Prospectus may lawfully be used for the
purposes specified in the Securities Act in connection with the offer for sale
and the sale of Senior Notes in the manner therein specified.
6. The Registration Statement and the Prospectus (except the
financial statements incorporated by reference therein, as to which we express
no opinion) appear on their
III-2
face to be appropriately responsive in all material respects to the requirements
of the Securities Act, and to the applicable rules and regulations of the
Commission thereunder.
7. As to the statements relating to the Senior Notes under
DESCRIPTION OF DEBT SECURITIES and ADDITIONAL TERMS OF SENIOR DEBT SECURITIES in
the prospectus initially filed as part of the Registration Statement, as
supplemented by the statements under DESCRIPTION OF THE SENIOR NOTES in the
Prospectus Supplement dated March 22, 2001, we are of the opinion that the
statements are accurate and do not omit any material fact required to be stated
therein or necessary to make such statements not misleading.
8. As to the statistical statements in the Registration Statement
(which includes statistical statements in the Incorporated Documents), we have
relied solely on the officers of Dominion Virginia Power. As to the other
matters, we have not undertaken to determine independently the accuracy or
completeness of the statements contained or incorporated by reference in the
Registration Statement or in the Prospectus. We accordingly assume no
responsibility for the accuracy or completeness of the statements made in the
Registration Statement except as stated above in regard to the captions in the
opinion in the preceding paragraph. We note that the Incorporated Documents were
prepared and filed by Dominion Virginia Power without our participation. We
have, however, participated in conferences with counsel for and representatives
of Dominion Virginia Power in connection with the preparation of the
Registration Statement, the Prospectus as it was initially issued and as it has
been supplemented or amended, and we have reviewed the Incorporated Documents
and such of the corporate records of Dominion Virginia Power as we deemed
advisable. None of the foregoing disclosed to us any information that gives us
reason to believe that the Registration Statement (except the financial
statements incorporated by reference therein, as to which we express no opinion)
contained on the date the Registration Statement became effective, or the
Prospectus contained on the date it was issued or the date it was supplemented
or amended, or that the Registration Statement or the Prospectus now contains,
any untrue statement of a material fact or omitted on said date or now omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading. The foregoing opinion is given on the basis
that any statement contained in an Incorporated Document shall be deemed not to
be contained in the Registration Statement or Prospectus if the statement has
been modified or superseded by any statement in a subsequently filed
Incorporated Document or in the Registration Statement or Prospectus.
9. No approval or consent by any public regulatory body, other than
the previously obtained order of the State Corporation Commission of Virginia,
is legally required in connection with the sale of the Senior Notes as
contemplated by the Underwriting Agreement (except to the extent that compliance
with the provisions of securities or blue sky laws of certain states may be
required in connection with the sale of the Senior Notes in such states) and the
carrying out of the provisions of the Underwriting Agreement.
We do not purport to express an opinion on any laws other than those
of the Commonwealth of Virginia, the State of New York and the United States of
America. This
III-3
opinion may not be relied upon by, nor may copies be delivered to, any person
without our prior written consent.
Very truly yours,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ & VALENTINE LLP
III-4
SCHEDULE IV
PROPOSED FORM OF OPINION
OF
MCGUIREWOODS LLP
One ▇▇▇▇▇ Center
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: VIRGINIA ELECTRIC AND POWER COMPANY
2001 Series A 5.75% Senior Notes
Due March 31, 2006
March 27, 2001
▇▇▇▇▇▇ Brothers Inc.
as Representative for the Underwriters
listed in Schedule I to the Underwriting Agreement
c/▇ ▇▇▇▇▇▇ Brothers
3 World Financial Center
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
The arrangements for issuance of up to U.S. $600,000,000 aggregate
principal amount of 2001 Series A 5.75% Senior Notes due March 31, 2006 (the
Senior Notes), of Virginia Electric and Power Company (Dominion Virginia Power)
pursuant to an Underwriting Agreement dated March 22, 2001 by and between
Dominion Virginia Power and the Underwriters listed on Schedule I as attached
thereto (the Underwriting Agreement), have been taken under our supervision as
counsel for Dominion Virginia Power. Terms not otherwise defined herein have
the meanings set forth in the Underwriting Agreement.
We have examined originals, or copies certified to our satisfaction,
of such corporate records of Dominion Virginia Power, indentures, agreements,
and other instruments, certificates of public officials, certificates of
officers and representatives of Dominion Virginia Power and of the Trustee, and
other documents, as we have deemed necessary as a basis for the opinions
hereinafter expressed. As to various questions of fact material to such
opinions, we have, when relevant facts were not independently established,
relied upon certifications by officers of Dominion Virginia Power, the Trustee
and other appropriate persons and statements
IV-1
contained in the Registration Statement hereinafter mentioned. All legal
proceedings taken as of the date hereof in connection with the transactions
contemplated by the Underwriting Agreement have been satisfactory to us.
On this basis we are of the opinion that:
1. No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency, domestic or foreign (other than those required under the
Securities Act and the Rules and Regulations and an authorization by the State
Corporation Commission of Virginia, all of which have been obtained, reports to
be filed with the State Corporation Commission of Virginia after issuance of the
Senior Notes, or as may be required under the securities or blue sky laws of the
various states) is necessary or required in connection with the due
authorization, execution and delivery of the Underwriting Agreement or the due
execution, delivery or performance of the Indenture by Dominion Virginia Power
or for the offering, issuance, sale or delivery of the Senior Notes.
2. The Indenture has been authorized, executed and delivered by
Dominion Virginia Power and has been duly qualified under the Trust Indenture
Act and constitutes a valid and binding obligation of Dominion Virginia Power
except as enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights generally or by general equitable principles (regardless
whether enforcement is in a proceeding in equity or at law).
3. The Senior Notes have been duly authorized and executed by
Dominion Virginia Power and, when completed and authenticated by the Trustee in
accordance with, and in the form contemplated by, the Indenture and issued,
delivered and paid for in accordance with the Underwriting Agreement, will have
been duly issued under the Indenture and will constitute valid and binding
obligations of Dominion Virginia Power entitled to the benefits provided by the
Indenture except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally or by general equitable principles
(regardless of whether enforcement is in a proceeding in equity or at law).
4. The Registration Statement (Reg. No. 333-38510) with respect to
the Senior Notes filed pursuant to the Securities Act, has become effective and
remains in effect at this date, and the Prospectus may lawfully be used for the
purposes specified in the Securities Act in connection with the offer for sale
and the sale of the Senior Notes in the manner therein specified.
5. The Registration Statement and the Prospectus (except the
financial statements incorporated by reference therein, as to which we express
no opinion) appear on their face to be appropriately responsive in all material
respects to the requirements of the Securities Act, and to the applicable rules
and regulations of the Commission thereunder.
6. We are of the opinion that the statements relating to the Senior
Notes contained in the prospectus initially filed as part of the Registration
Statement under
IV-2
DESCRIPTION OF DEBT SECURITIES and ADDITIONAL TERMS OF SENIOR DEBT SECURITIES,
as supplemented by the statements under DESCRIPTION OF THE SENIOR NOTES in the
Prospectus Supplement dated March 22, 2001, are substantially accurate and fair.
7. We have participated in conferences with officers and other
representatives of Dominion Virginia Power and representatives of the
Underwriters at which the contents of the Registration Statement and the
Prospectus were discussed, and we have consulted with officers and other
employees of Dominion Virginia Power to inform them of the disclosure
requirements of the Securities Act. We have examined various reports, records,
contracts and other documents of Dominion Virginia Power and orders and
instruments of public officials, which our investigation led us to deem
pertinent. In addition, we attended the due diligence meetings with
representatives of Dominion Virginia Power and the closing at which Dominion
Virginia Power satisfied the conditions contained in Section 7 of the
Underwriting Agreement. We have not, however, undertaken to make any independent
review of other records of Dominion Virginia Power which our investigation did
not lead us to deem pertinent. As to the statistical statements in the
Registration Statement (which includes the Incorporated Documents), we have
relied solely on the officers of Dominion Virginia Power. We accordingly assume
no responsibility for the accuracy or completeness of the statements made in the
Registration Statement, except as stated above in regard to the captions in the
opinion in the preceding paragraph. But such conferences, consultation,
examination and attendance disclosed to us no information with respect to such
other matters that gives us reason to believe that the Registration Statement
contained on the date the Registration Statement became effective, or the
Prospectus contained on the date it was issued, or that the Registration
Statement or the Prospectus contains now, any untrue statement of a material
fact or omitted on such date or omits now to state a material fact required to
be stated therein or necessary to make the statements therein not misleading. We
are of the opinion that the Registration Statement (excepting the financial
statements incorporated therein by reference, as to which we express no opinion)
complies as to form in all material respects with all legal requirements. The
foregoing opinion is given on the basis that any statement contained in an
Incorporated Document shall be deemed not to be contained in the Registration
Statement or Prospectus if the statement has been modified or superseded by any
statement in a subsequently filed Incorporated Document or in the Registration
Statement or Prospectus.
IV-3
We do not purport to express an opinion on any laws other than those
of the Commonwealth of Virginia, the State of New York and the United States of
America. This opinion may not be relied upon by, nor may copies be delivered
to, any person without our prior written consent.
Yours very truly,
MCGUIREWOODS LLP
IV-4
SCHEDULE V
PROPOSED FORM OF OPINION
OF
GENERAL COUNSEL OF
DOMINION VIRGINIA POWER
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: VIRGINIA ELECTRIC AND POWER COMPANY
2001 Series A 5.75% Senior Notes
due March 31, 2006
March 27, 2001
▇▇▇▇▇▇ Brothers Inc.
as Representative for the Underwriters
listed in Schedule I to the Underwriting Agreement
c/▇ ▇▇▇▇▇▇ Brothers
3 World Financial Center
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
The arrangements for issuance of up to U.S. $600,000,000 aggregate
principal amount of 2001 Series A 5.75% Senior Notes due March 31, 2006 (the
Senior Notes), of Virginia Electric and Power Company (Dominion Virginia Power),
pursuant to an Underwriting Agreement dated March 22, 2001 by and between
Dominion Virginia Power and the Underwriters listed on Schedule I as attached
thereto (the Underwriting Agreement), have been taken under my supervision as
Vice President and General Counsel of Dominion Virginia Power. Terms not
otherwise defined herein have the meanings set forth in the Underwriting
Agreement.
As Vice President and General Counsel of Virginia Electric and Power
Company, I have general responsibility over the attorneys within Dominion
Virginia Power's Legal Department responsible for rendering legal counsel to
Dominion Virginia Power regarding corporate, financial, securities and other
matters. I am generally familiar with the organization, business and affairs of
Dominion Virginia Power. I am also familiar with the proceedings taken and
proposed to be taken by Dominion Virginia Power in connection with the offering
and sale
V-1
of the Senior Notes, and I have examined such corporate records, certificates
and other documents and such questions of the law as I have considered necessary
or appropriate for the purposes of this opinion. In addition, I have
responsibility for supervising lawyers who may have been asked by me or others
to review legal matters arising in connection with the offering and sale of the
Senior Notes. Accordingly, some of the matters referred to herein have not been
handled personally by me, but I have been made familiar with the facts and
circumstances and the applicable law, and the opinions herein expressed are my
own or are opinions of others in which I concur.
On this basis I am of the opinion that:
1. Dominion Virginia Power has been duly incorporated and is validly
existing as a corporation in good standing under the laws 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 the Underwriting Agreement and the Indenture; and
Dominion Virginia Power is duly qualified as a foreign corporation to transact
business and is in good standing in each other jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to so qualify or
to be in good standing would not result in a Material Adverse Effect.
2. The Underwriting Agreement has been duly authorized, executed and
delivered by Dominion Virginia Power.
3. There are no actions, suits or proceedings pending or, to the
best of my knowledge, threatened, to which Dominion Virginia Power or one of its
subsidiaries is a party or to which any of Dominion Virginia Power's or any of
its subsidiaries' properties is subject other than any proceedings described in
the Prospectus and proceedings which I believe are not likely to have a material
adverse effect on the power or ability of Dominion Virginia Power to perform its
obligations under the Underwriting Agreement or to consummate the transactions
contemplated thereby or by the Prospectus.
I am a member of the Bar of the Commonwealth of Virginia and I do not
purport to express an opinion on any laws other than those of the Commonwealth
of Virginia and the United States of America. This opinion may not be relied
upon by, nor may copies be delivered to, any person without our prior written
consent. I do not undertake to advise you of any changes in the opinions
expressed herein resulting from matters that may hereinafter arise or that may
hereinafter be brought to my attention.
Yours very truly,
V-2