_____________________________________________________________________________________________________________________________________________
_____________________________________________________________________________________________________________________________________________
POTOMAC
ELECTRIC POWER COMPANY
(a
District of Columbia and Virginia corporation)
6.50%
Senior Notes due 2037
(Additional
Notes of Existing Series)
PURCHASE
AGREEMENT
Dated: March
24, 2008
_____________________________________________________________________________________________________________________________________________
_____________________________________________________________________________________________________________________________________________
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Table of Contents
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Page
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SECTION
1.
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Representations
and Warranties.
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3
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(a)
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Representations
and Warranties of the Company.
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3
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(i)
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Compliance
with Securities Law Requirements.
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3
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(ii)
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Incorporated
Documents
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5
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(iii)
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Independent
Accountants
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5
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(iv)
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Financial
Statements
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5
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(v)
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No
Material Adverse Change in Business.
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5
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(vi)
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Good
Standing of the Company.
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6
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(vii)
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No
Significant Subsidiaries.
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6
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(viii)
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Capitalization.
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6
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(ix)
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Authorization
of this Agreement.
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6
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(x)
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Authorization
of the Indenture.
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6
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(xi)
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Authorization
of the Securities.
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6
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(xii)
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Authorization
of the Mortgage.
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6
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(xiii)
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Authorization
of the Collateral Bonds.
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7
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(xiv)
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Description
of the Securities, the Indenture, the Collateral Bonds and the
Mortgage/
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7
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(xv)
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Absence
of Defaults and Conflicts.
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7
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(xvi)
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Absence
of Labor Dispute.
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8
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(xvii)
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Absence
of Proceedings.
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8
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(xviii)
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Description
and Filing of Contracts and Documents.
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8
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(xix)
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Absence
of Further Requirements.
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8
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(xx)
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Possession
of Licenses and Permits.
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8
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(xxi)
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Title
to Property and Mortgaged Property.
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9
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(xxii)
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Lien
of Mortgage.
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9
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(xxiii)
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Leases.
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9
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(xxiv)
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Investment
Company Act.
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10
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(xxv)
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Environmental
Laws.
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10
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(xxvi)
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Internal
Controls.
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10
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(xxvii)
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Compliance
with Sarbanes Oxley.
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11
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(b)
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Officer’s
Certificates.
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11
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SECTION
2.
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Sale
and Delivery to Underwriters; Closing; Covenants of the
Underwriters.
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11
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(a)
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Securities.
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11
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(b)
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Payment.
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11
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(c)
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Denominations;
Registration.
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12
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(d)
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Delivery
of Global Securities.
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12
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(e)
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Notice
of Completion.
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12
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(f)
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Use
of Free Writing Prospectuses.
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12
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SECTION
3.
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Covenants
of the Company.
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12
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(a)
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Preparation
and Filing of Term Sheet.
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12
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(b)
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Preparation
and Filing of the Prospectus.
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12
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(c)
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Review
of Amendments and Supplements.
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12
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(d)
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Free
Writing Prospectuses.
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13
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(e)
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Notification
of Commission Comments and Orders, Etc.
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13
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(f)
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Delivery
of Registration Statements.
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13
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(g)
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Delivery
of Prospectuses.
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13
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(h)
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Continued
Compliance with Securities Laws.
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13
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(i)
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Blue
Sky Qualifications.
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14
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(j)
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Rule
158.
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14
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(k)
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Filing
Fees.
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14
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(l)
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Use
of Proceeds.
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14
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(m)
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Restriction
on Sale of Securities.
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15
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SECTION
4.
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Payment
of Expenses.
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15
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(a)
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Expenses
Payable by the Company.
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15
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(b)
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Expenses
Upon Termination.
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15
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SECTION
5.
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Conditions
of Underwriters’ Obligations.
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15
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(a)
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No
Stop Order; Commission Filings.
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15
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(b)
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Opinions
of Counsel for Company.
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16
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(c)
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Opinion
of Counsel for Underwriters.
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16
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(d)
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Officers’
Certificate.
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16
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(e)
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Accountant’s
Comfort Letter.
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16
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(f)
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Bring-down
Comfort Letter.
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16
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(g)
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Maintenance
of Rating.
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16
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(h)
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Additional
Documents.
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17
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(i)
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Termination
of Agreement.
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17
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SECTION
6.
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Indemnification.
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17
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(a)
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Indemnification
of Underwriters.
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17
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(b)
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Indemnification
of Company, Directors and Officers.
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18
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(c)
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Actions
against Parties; Notification.
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18
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SECTION
7.
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Contribution.
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18
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SECTION
8.
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Representations,
Warranties and Agreements to Survive.
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19
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SECTION
9.
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Termination
of Agreement.
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19
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(a)
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Termination;
General.
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19
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(b)
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Liabilities.
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20
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SECTION
10.
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Default
by One or More of the Underwriters.
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20
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SECTION
11.
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Notices.
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21
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SECTION
12.
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Parties
in Interest.
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21
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SECTION
13.
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No
Advisory or Fiduciary Relationship.
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21
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SECTION
14.
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Governing
Law and Time.
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21
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SECTION
15.
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Counterparts.
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21
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SECTION
16.
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Entire
Agreement.
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22
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SECTION
17.
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Effect
of Headings.
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22
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SCHEDULES
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Schedule
A
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-
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List
of Underwriters.
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Sch
A-1
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Schedule
B
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Issuer
Free Writing Prospectuses.
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Sch
B-1
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Schedule
C
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Term
Sheet.
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Sch
C-1
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EXHIBITS
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Exhibit
A
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-
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Form
of Opinion of Kirk J. Emge
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A-1
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Exhibit
B
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Form
of Opinion of Covington & Burling LLP
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B-1
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POTOMAC
ELECTRIC POWER COMPANY
(a
District of Columbia and Virginia corporation)
$250,000,000
6.50%
Senior Notes due 2037
PURCHASE
AGREEMENT
March 24,
2008
Citigroup
Global Markets Inc.
388
Greenwich Street
New York,
New York 10013
J.P.
Morgan Securities Inc.
270 Park
Avenue
New York,
New York 10017
As
Representatives of the Several Underwriters
Ladies
and Gentlemen:
Potomac
Electric Power Company, a District of Columbia and Virginia corporation (the
“
Company
”),
confirms its agreement (the “
Agreement
”)
with Citigroup Global Markets Inc. (“
Citigroup
”)
and J.P. Morgan Securities Inc. (“
JPMorgan
”)
and each of the other Underwriters named in Schedule A hereto (collectively, the
“
Underwriters
”,
which term shall also include any underwriter substituted as hereinafter
provided in Section 10 hereof), for whom Citigroup and JPMorgan are
acting as representatives (in such capacity, the “
Representatives
”),
with respect to the issue and sale by the Company and the purchase by the
Underwriters, acting severally and not jointly, of the respective principal
amounts set forth in Schedule A hereto of $250,000,000 in aggregate
principal amount of the Company’s 6.50% Senior Notes due 2037 (the “
Securities
”).
The
Securities are to be issued as an additional amount of the Company’s 6.50%
Senior Notes due 2037 series of securities under an indenture, dated as of
November 17, 2003 (the “
Original
Indenture
”), between the Company and The Bank of New York, trustee (the
“
Trustee
”), as
supplemented by an officer’s certificate, dated November 16, 2007 (the “
Original Officer’s
Certificate
”
)
,
establishing the terms of such series and as further supplemented by a
supplemental officer’s certificate, to be dated the Closing Time (as defined in
Section 2(b))(the “
Supplemental
Officer’s Certificate
”
),
establishing an additional covenant of such series. The
Company will also enter into a supplemental indenture, to be dated the Closing
Time (the “
Indenture
Supplement
”), to amend the Original Indenture (the Original Indenture, as
so supplemented by the Original Officer’s Certificate and the Supplemental
Officer’s Certificate, and as so amended by the Indenture Supplement, being
hereinafter called the “
Indenture
”).
Simultaneously
with the issue and sale by the Company of the Securities, and as a condition to
the purchase thereof by the Underwriters, the Company will issue and deliver to
the Trustee $250,000,000 in aggregate principal amount of its First Mortgage
Bonds, 6.50% Collateral Series 2 due 2037 (the “
Collateral
Bonds
”). The Collateral Bonds are to be issued under the
Mortgage and Deed of Trust, dated as of July 1, 1936, from the Company to The
Bank of New York (successor in trust to The Riggs National
Bank of
Washington, D.C.), trustee (the “
Mortgage
Trustee
”), as amended and supplemented by various instruments including
the supplemental indenture, dated as of March 24, 2008 (the “
Mortgage
Supplement
”),
establishing the terms of the Collateral Bonds, such Mortgage and Deed of Trust,
as so amended and supplemented, being hereinafter called the “
Mortgage
”.
The
Company understands that the Underwriters propose to make a public offering of
the Securities promptly after this Agreement has been executed and
delivered.
The
Company has filed with the Securities and Exchange Commission (the “
Commission
”)
on August 24, 2007 a registration statement on Form S-3 (No.
333-145691-03), for the registration of securities, including the Securities,
under the Securities Act of 1933, as amended (the “
1933 Act
”),
and the offer and sale thereof from time to time in accordance with Rule 415 of
the rules and regulations of the Commission under the 1933 Act (the “
1933 Act
Regulations
”), and for the qualification of the Indenture under the Trust
Indenture Act of 1939, as amended (the “
1939
Act
”).
When used
in this Agreement, the following terms have the specified meanings:
“
Applicable
Time
” means 3:45 p.m. (Eastern time), on March 24, 2008.
“
Base
Prospectus
” means the base prospectus relating to the Securities filed as
part of the Registration Statement, in the form in which it has been most
recently filed with the Commission prior to the date of this
Agreement.
“
Disclosure
Package
” means, collectively, (i) the Pricing Prospectus, (ii) the Term
Sheet and (iii) any other Issuer Free Writing Prospectus listed on Schedule B.
“Effective
Time
” means the date and time of the effectiveness of the Registration
Statement for purposes of paragraph (f)(2) of Rule 430B of the 1933 Act
Regulations, as applied to the respective Underwriters.
“
Issuer Free Writing
Prospectus
” means (i) the Term Sheet and (ii) any other “issuer free
writing prospectus” (as defined by Rule 433 of the 1933 Act Regulations (“
Rule 433
”))
with respect to the Securities.
“
Preliminary
Prospectus
” means either (i) the Base Prospectus or (ii) the Base
Prospectus as supplemented by a preliminary prospectus supplement provided by
the Company to the Underwriters for use in connection with the offering of the
Securities, in either case as filed with the Commission pursuant to Rule 424(b)
of the 1933 Act Regulations (“
Rule
424(b)
”).
“
Pricing
Prospectus
” means the Preliminary Prospectus in the form most recently
provided to the Underwriters for use in connection with the offering of the
Securities prior to the Applicable Time.
“
Prospectus
”
means the Base Prospectus as supplemented by the final prospectus supplement
relating to the offer and sale of the Securities, as filed with the Commission
pursuant to Rule 424(b).
“
Registration
Statement
” means, with reference to any particular time, the Company’s
registration statement on Form S-3 (No. 333-145691-03), referred to above,
including (a) any amendments thereto at such time, (b) the exhibits and
schedules thereto at such time and (c) any prospectus filed with the Commission
pursuant to Rule 424(b) that, in accordance with Rule 430B of the 1933 Act
Regulations (“
Rule 430B
”),
is deemed to be a part thereof.
“
Term Sheet
”
means the term sheet prepared and filed pursuant to Section 3(a) of this
Agreement.
The
foregoing definitions are subject to the following qualifications:
(a) all
references in this Agreement to the Registration Statement, any Preliminary
Prospectus, or the Prospectus or to any of the financial statements, schedules
or other information that is “contained”, “included” or “stated” (or other words
of like import) therein shall be deemed to include the information contained in
documents filed with the Commission under the Securities Exchange Act of 1934
(the “
1934
Act
”) that are incorporated, or deemed incorporated, therein by
reference pursuant to Item 12 of Form S-3 under the 1933 Act, to the
extent such information has not been superseded or modified in accordance with
Rule 412 under the 1933 Act (as qualified by Rule 430B(g) of the 1933 Act
Regulations) and (i) in the case of references to the “Registration Statement”
are filed with the Commission at or prior to the Effective Time and (ii) in the
case of references to any “Preliminary Prospectus” or the “Prospectus” are filed
with the Commission at or prior to the date thereof;
(b) all
references in this Agreement to an amendment to the Registration Statement shall
be deemed to include any document filed under the 1934 Act subsequent to the
date thereof that is deemed incorporated by reference therein pursuant to Item
12 of Form S-3 under the 1933 Act;
(c) all
references in this Agreement to an amendment or supplement to any Preliminary
Prospectus or the Prospectus shall be deemed to include any document filed under
the 1934 Act subsequent to the date thereof that is deemed incorporated by
reference therein pursuant to Item 12 of Form S-3 under the 1933 Act;
and
(d) all
references in this Agreement to the Registration Statement, any Preliminary
Prospectus, the Prospectus or any amendment or supplement to any of the
foregoing shall be deemed to include the copy filed with the Commission pursuant
to its Electronic Data Gathering, Analysis and Retrieval system (“
EDGAR
”).
SECTION
1.
Representations
and Warranties
.
(a)
Representations and
Warranties of the Company.
The Company represents and warrants
to each Underwriter on the date of this Agreement, at the Applicable Time and at
the Closing Time as follows:
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(i)
Compliance
with Securities Law
Requirements
.
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(A)
Well-Known
Seasoned Issuer Status
. At the time the Registration
Statement was filed with the Commission and the time of the most recent
amendment of the Registration Statement for purposes of complying with
Section 10(a)(3) of the 1933 Act, each of the Company and Pepco Holdings,
Inc. (“
PHI
”),
of which the Company is a wholly-owned subsidiary, was a “well-known
seasoned issuer” as defined in Rule 405 of the 1933 Act
Regulations.
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(B)
Eligibility
to Use Form S-3
. At the time the Registration Statement
was filed with the Commission and the time of the most recent amendment of
the Registration Statement for purposes of complying with Section 10(a)(3)
of the 1933 Act, the Company met the requirements for use of Form S-3
under the 1933 Act.
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(C)
Status
and Content of the Registration Statement
.
The Registration
Statement became effective automatically upon the filing thereof with the
Commission under the 1933 Act on August 24, 2007. No stop order
suspending the effectiveness of the Registration Statement has been issued
under the 1933 Act and no proceedings for that purpose have been
instituted by the Commission or are pending or, to the knowledge of the
Company, are contemplated by the Commission, and any request on the part
of the Commission for additional information with respect to the
Registration Statement has been complied with. At the time the
Registration Statement became effective, at the time of each amendment, if
any, to the Registration Statement for purposes of complying with Section
10(a)(3) of the 1933 Act and at the Effective Time, the Registration
Statement complied in all material respects with the requirements of the
1933 Act and the 1933 Act Regulations and the 1939 Act and the rules and
regulations of the Commission under the 1939 Act (the “
1939 Act
Regulations
”). At the Effective Time, the Registration
Statement did not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to
make the statements therein not
misleading.
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(D)
Status
and Content of the Preliminary Prospectus
. Each
Preliminary Prospectus, as of its date and at the time it was filed with
the Commission, conformed in all material respects with the requirements
of the 1933 Act and the 1933 Act Regulations and the 1939 Act and the 1939
Act Regulations, and did not contain any untrue statement of material fact
or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading. Each Preliminary Prospectus
delivered to the Underwriters in connection with the offering of the
Securities was identical to the electronically transmitted copies thereof
filed with the Commission pursuant to EDGAR (except that the registration
fee table was deleted from the cover thereof), except to the extent
permitted by Regulation S-T. No order preventing or suspending
the use of any Preliminary Prospectus has been issued by the
Commission.
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(E)
Issuer
Free Writing Prospectuses
. At the earliest time after
the filing of the Registration Statement that the Company or another
offering participant made a bona fide offer (within the meaning of Rule
164(h)(2) of the 1933 Act Regulations) of the Securities, the Company was
not an “ineligible issuer” as defined in Rule 405 of the 1933 Act
Regulations. Each Issuer Free Writing Prospectus, at the time
it was filed with the Commission pursuant to Rule 433 (i) did not include
any information that conflicts with (A) information contained in the
Registration Statement, including any prospectus or prospectus supplement
that is part of the Registration Statement, and not superseded or
modified, or (B) information contained in the Company’s periodic and
current reports filed with the Commission pursuant to Section 13 or 15(d)
of the 1934 Act that are incorporated or deemed incorporated by reference
in the Registration Statement, and not superseded or modified, and (ii)
complied in all other respects with the requirements of Rule 164 and Rule
433 (without reliance on subsections (b), (c) and (d) of Rule
164). No order preventing or suspending the use of any Issuer
Free Writing Prospectus has been issued by the
Commission.
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(F)
Content
of the Disclosure Package
. The Disclosure Package, at
the Applicable Time, did not, and, at the Closing Time, will not, contain
any untrue statement of material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not
misleading.
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(G)
Status
and Content of the Prospectus
. The Prospectus, as of its
date, at the time it is filed with the Commission and at the Closing Time,
will conform in all material respects with the requirements of the 1933
Act and the 1933 Act Regulations and the 1939
Act
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and
the 1939 Act Regulations and will not contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading. The Prospectus delivered to the
Underwriters in connection with the offering of the Securities will be
identical to the copy thereof filed electronically with the Commission
pursuant to EDGAR (except that the registration fee table will be deleted
from the cover thereof), except to the extent permitted by Regulation
S-T.
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The
representations and warranties in this subsection (a) shall not apply to
any statements in or omissions from the Registration Statement, any
Preliminary Prospectus, any Issuer Free Writing Prospectus, the Disclosure
Package or the Prospectus made in reliance upon and in conformity with
information furnished to the Company in writing by any Underwriter
expressly for use therein.
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(ii)
Incorporated
Documents
. The documents incorporated or deemed
incorporated by reference in the Registration Statement, the Disclosure
Package and the Prospectus, at the time they were or hereafter are filed
with the Commission, complied or will comply, as applicable, in all
material respects with the requirements of the 1934 Act and the rules and
regulations of the Commission thereunder (the “
1934 Act
Regulations
”) and, when filed did not and will not contain any
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading.
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(iii)
Independent
Accountants
. The accountants who audited the financial
statements and financial statement schedules included in the Registration
Statement, the Disclosure Package and the Prospectus are independent
registered public accountants within the meaning of Regulation S-X of
the Commission.
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(iv)
Financial
Statements
.
The
financial statements, together with the respective schedules and notes
relating thereto, included in the Registration Statement, the Disclosure
Package and the Prospectus, present fairly the financial position of the
Company and its consolidated subsidiaries at the dates indicated and the
results of operations and cash flows of the Company and its consolidated
subsidiaries for the periods specified; said financial statements have
been prepared in conformity with generally accepted accounting principles
(“
GAAP
”)
applied on a consistent basis throughout the periods involved, except as
otherwise stated therein. The selected financial data and the
summary financial information included in the Registration Statement, the
Disclosure Package and the Prospectus present fairly the information shown
therein and have been compiled on a basis consistent with that of the
audited financial statements included in the Registration
Statement. Any pro forma financial information included in the
Registration Statement, the Disclosure Package or the Prospectus present
fairly the information shown therein, have been prepared in accordance
with the Commission’s rules and guidelines with respect to pro forma
financial information and have been properly compiled on the bases
described therein, and the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give effect
to the transactions and circumstances referred to therein. The
financial statements and other financial data included in the Registration
Statement, each Preliminary Prospectus and the Prospectus comply in all
material respects with the requirements of paragraph (e) of Item 10 of
Regulation S-K.
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(v)
No
Material Adverse Change in Business
. Since the date of
the latest audited balance sheet included in the Disclosure Package and
the Prospectus and except as disclosed therein, there has been no material
adverse change in the business, condition (financial or otherwise) or
results of operations of the Company and its subsidiaries considered as
one
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enterprise,
whether or not arising in the ordinary course of business (any such
change, a “
Material
Adverse Change
”).
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(vi)
Good
Standing of the Company
. The Company has been duly
organized and is validly existing as a corporation in good standing under
the laws of the District of Columbia and the Commonwealth of Virginia and
has corporate power and authority to own, lease and operate its properties
and to conduct its business as described in the Disclosure Package and the
Prospectus and to enter into and perform its obligations under this
Agreement; and the Company is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which
such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure
so to qualify or to be in good standing would not have a material adverse
effect on the business, condition (financial or otherwise) or results of
operations of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business (any
such change or development, a “
Material
Adverse Effect
”).
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(vii)
No
Significant Subsidiaries
. The Company has no
“significant subsidiaries” as defined in Rule 1-02 of Regulation
S-X.
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(viii)
Capitalization
. The
authorized, issued and outstanding capital stock of the Company is as set
forth in the Registration Statement, the Disclosure Package and the
Prospectus. The shares of issued and outstanding capital stock
of the Company have been duly authorized and validly issued and are fully
paid and non-assessable and are owned by PHI; none of the outstanding
shares of capital stock of the Company was issued in violation of the
preemptive or other similar rights of any securityholder of the
Company.
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(ix)
Authorization
of this Agreement
. This Agreement has been duly
authorized, executed and delivered by the
Company.
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(x)
Authorization
of the Indenture
. The Indenture has been duly
authorized, and the Indenture (excluding the Supplemental Officer’s
Certificate and the Indenture Supplement) has been duly executed and
delivered by the Company; and the Indenture (excluding the Supplemental
Officer’s Certificate and the Indenture Supplement) constitutes, and, at
the Closing Time, the Indenture will constitute, the valid and legally
binding obligation of the Company, enforceable in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors’ rights and to general equity
principles. The Indenture has been duly qualified under the
1939 Act.
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(xi)
Authorization
of the Securities
. The Securities have been duly
authorized by the Company and, at the Closing Time, will have been duly
executed by the Company; and, when the Securities have been (A)
authenticated and delivered by the Trustee under the Indenture and (B)
issued and delivered by the Company against payment of the purchase price
therefor as provided in this Agreement, the Securities will constitute
valid and legally binding obligations of the Company, enforceable in
accordance with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors’ rights and to general
equity principles, and will be entitled to the benefits of the Indenture
ratably with all other securities outstanding
thereunder.
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(xii)
Authorization
of the Mortgage
. The Mortgage has been duly authorized,
and the Mortgage (excluding the Mortgage Supplement) has been duly
executed and delivered by the
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Company;
and the Mortgage (excluding the Mortgage Supplement) constitutes the valid
and legally binding obligation of the Company, enforceable in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting mortgagees’ and other creditors’ rights and to
general equity principles and except to the extent that the law of the
jurisdictions in which the mortgaged property is located may limit or deny
certain remedial provisions of the Mortgage. At the Closing
Time, the Mortgage Supplement will have been duly executed and delivered
by the Company and the Mortgage (including the Mortgage Supplement) will
constitute the valid and legally binding obligation of the Company,
enforceable in accordance with its terms, subject to the limitations
described above.
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(xiii)
Authorization
of the Collateral Bonds
. The Collateral Bonds have been
duly authorized by the Company and, at Closing Time, will have been duly
executed by the Company; and when (A) the Collateral Bonds have been (w)
authenticated and delivered by the Mortgage Trustee under the Mortgage and
(x) issued and delivered by the Company to the Trustee as provided in the
Indenture and (B) the Securities have been (y) authenticated and delivered
by the Trustee under the Indenture and (z) issued and delivered by the
Company against payment of the purchase price therefor as provided in this
Agreement, the Collateral Bonds will constitute valid and legally binding
obligations of the Company, enforceable in accordance with their terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors’ rights and to general equity principles, and will be
entitled to the benefits of the Mortgage ratably with all other securities
outstanding thereunder.
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(xiv)
Description
of the Securities, the Indenture, the Collateral Bonds and the
Mortgage
. The descriptions of the Securities, the
Indenture, the Collateral Bonds and the Mortgage in the Registration
Statement, the Disclosure Package and the Prospectus are accurate in all
material respects and the Securities, the Indenture (excluding the
Original Officer’s Certificate and the Supplemental Officer’s
Certificate), the Collateral Bonds and the Mortgage will be in
substantially the respective forms filed or incorporated by reference, as
the case may be, as exhibits to the Registration
Statement.
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(xv)
Absence
of Defaults and Conflicts
. The Company is not in
violation of its articles of incorporation or by-laws or in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, deed of trust,
loan or credit agreement, note, lease or other agreement or instrument to
which the Company is a party or by which it may be bound, or to which any
of the property or assets of the Company is subject (collectively, “
Agreements and
Instruments
”) except for such defaults as have not resulted, and
are not reasonably expected to result, in a Material Adverse Effect; and
the execution, delivery and performance of this Agreement, the Indenture
and the Securities, and the Mortgage and the Collateral Bonds, and the
consummation of the transactions contemplated herein (including the
issuance and sale of the Securities, the use of the proceeds from the sale
of the Securities as described in the Registration Statement, the
Disclosure Package and the Prospectus and the issuance and delivery of the
Collateral Bonds) and compliance by the Company with its obligations
hereunder, under the Indenture, on the Securities, under the Mortgage and
on the Collateral Bonds have been duly authorized by all necessary
corporate action and do not and will not, whether with or without the
giving of notice or passage of time or both, conflict with or constitute a
breach of, or default or Repayment Event (as defined below) under, or
result in the creation or imposition of any Lien (as defined below), other
than the Lien of the Mortgage and the Lien of the Indenture, upon any
property or assets of the Company pursuant to, the Agreements and
Instruments (except for such conflicts, breaches, defaults
or
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Liens
as would not result in a Material Adverse Effect), nor will such action
result in any violation of the provisions of the articles of incorporation
or by-laws of the Company or any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over
the Company or any of its assets, properties or operations. As
used herein, a “
Repayment
Event
” means any event or condition that gives the holder of any
note, debenture or other evidence of indebtedness (or any person acting on
such holder’s behalf) the right to require the repurchase, redemption or
repayment of all or a portion of such indebtedness by the
Company.
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(xvi)
Absence
of Labor Dispute
. No labor dispute with the employees of
the Company exists or, to the knowledge of the Company, is imminent, and
the Company is not aware of any existing or imminent labor disturbance by
the employees of any of its principal suppliers, manufacturers, customers
or contractors, which, in either case, could reasonably be expected to
result in a Material Adverse
Effect.
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(xvii)
Absence
of Proceedings
. There is no action, suit, proceeding,
inquiry or investigation before or brought by any court or governmental
agency or body, domestic or foreign, now pending, or, to the knowledge of
the Company, threatened, against or affecting the Company, that (A) is
required to be disclosed in the Registration Statement, the Pricing
Prospectus or the Prospectus and is not disclosed as required, (B) could
reasonably be expected to materially and adversely affect the consummation
of the transactions contemplated in this Agreement or the performance by
the Company of its obligations hereunder or (C) except as disclosed in the
Registration Statement, the Disclosure Package and the Prospectus, could
reasonably be expected to result in a Material Adverse
Effect. The aggregate of all pending legal or governmental
proceedings to which the Company is a party or of which any of its
properties or assets is the subject that are not described in the Pricing
Prospectus, including ordinary routine litigation incidental to the
business, could not reasonably be expected to result in a Material Adverse
Effect.
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(xviii)
Description
and Filing of Contracts and Documents
. All contracts or
documents that are required to be described in the Registration Statement,
the Pricing Prospectus or the Prospectus or to be filed as exhibits to the
Registration Statement have been so described and filed as
required.
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(xix)
Absence
of Further Requirements
.
All filings with, and
authorizations, approvals, consents, licenses, orders, registrations,
qualifications or decrees of, any court or governmental authority or
agency that are necessary or required for the performance by the Company
of its obligations hereunder, in connection with the offering, issuance or
sale of the Securities hereunder or the consummation of the transactions
contemplated by this Agreement or for the due execution, delivery or
performance by the Company of the Indenture and the Mortgage, have been
obtained, except such as may be required under the 1933 Act or the 1933
Act Regulations or under state securities laws, and the Company has
complied with all terms and conditions contained in such authorizations,
approvals, consents, licenses, orders, registrations, qualifications or
decrees as have been obtained.
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(xx)
Possession
of Licenses and Permits
. The Company possesses such
permits, licenses, approvals, consents and other authorizations
(collectively, “
Governmental
Licenses
”) issued by the appropriate federal, state, local or
foreign regulatory agencies or bodies necessary to conduct the business
now operated by it and is in compliance with the terms and conditions of
all such Governmental Licenses, except (a) as disclosed in the
Registration Statement, the Disclosure Package and the Prospectus or (b)
where the failure so to possess any such Governmental
License
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or
to comply therewith would not, singly or in the aggregate, have a Material
Adverse Effect; all of the Governmental Licenses are valid and in full
force and effect, except where the invalidity of such Governmental
Licenses or the failure of such Governmental Licenses to be in full force
and effect would not have a Material Adverse Effect; and the Company has
not received any notice of proceedings relating to the revocation or
modification of any such Governmental Licenses, the revocation or
modification of which would, singly or in the aggregate, result in a
Material Adverse Effect.
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(xxi)
Title
to Property and Mortgaged Property
. The Company has good
and marketable title to all real property owned by the Company and
described in the Mortgage as subject to the lien thereof, and good title
to all other property owned by the Company and so described as subject to
such lien, in each case, subject only to such exceptions, defects and
qualifications as do not (A) affect the value of any such properties that
are material to the business of the Company in any material respect or (B)
affect the use made or proposed to be made of such properties by the
Company in any material respect; and the descriptions of all such property
contained in the Mortgage are correct and adequate for purposes of the
lien purported to be created by the
Mortgage.
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(xxii)
Lien of
Mortgage
.
The Mortgage (excluding the Mortgage
Supplement) constitutes, and at the Closing Time the Mortgage will
constitute, a valid first lien upon and security interest in the interest
held by the Company in its property covered by the Mortgage, subject to no
mortgage, pledge, lien, security interest, charge or other encumbrance of
any kind (collectively, “
Liens
”)
prior to the lien of the Mortgage except “permitted liens” (as defined in
the Mortgage) and other Liens permitted by the Mortgage and to such other
matters as do not materially affect the security for the Collateral
Bonds. The Mortgage (excluding the Mortgage Supplement) by its
terms effectively subjects, and at and after the Closing Time the Mortgage
by its terms will effectively subject, to the lien thereof all property
(except property of the kinds specifically excepted from the lien of the
Mortgage) acquired by the Company after the date of the execution and
delivery of the Mortgage, subject to no Lien prior to the lien of the
Mortgage except (A) “permitted liens” (as defined in the Mortgage), (B)
any Lien thereon existing at the time of such acquisition, (C) any Lien
for unpaid portions of the purchase price thereof placed thereon at the
time of such acquisition, (D) with respect to real property, any Lien
placed thereon following the acquisition thereof by the Company and prior
to the recording and filing of a supplemental indenture or other
instrument specifically describing such real property, (E) as otherwise
provided in Article XII of the Mortgage, (F) except for possible claims in
bankruptcy and possible claims for taxes and (G) such other matters as
would not materially affect the security for the Collateral
Bonds. At the Closing Time, the Mortgage (except for the
Mortgage Supplement) will have been duly recorded, and the Mortgage
Supplement will have been duly filed for recordation as a mortgage of real
estate, in the only counties in which any real property subject to the
lien of the Mortgage is located, and all requisite steps will have been
taken to perfect the security interest of the Mortgage in personal
property of the Company; and at the Closing Time all taxes and recording
and filing fees required to be paid with respect to the execution,
recording or filing of the Mortgage, the filing of financing statements
and similar documents and the issuance of the Collateral Bonds will have
been paid.
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(xxiii)
Leases
. All
of the leases and subleases material to the business of the Company, and
under which the Company holds properties described in the Registration
Statement, the Disclosure Package and the Prospectus, are in full force
and effect, and the Company has no notice of any claim of any sort
asserted by anyone adverse to the rights of the Company under any of the
leases or subleases mentioned above, or affecting or questioning the
rights of the Company to the continued possession of the leased or
subleased premises under any such lease
or
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sublease,
that, if the subject of an adverse decision, ruling or finding, would have
a Material Adverse Effect.
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(xxiv)
Investment
Company Act
. The Company is not, and upon the issuance
and sale of the Securities as herein contemplated and the application of
the net proceeds therefrom as described in the Registration Statement, the
Disclosure Package and the Prospectus will not be, an “investment company”
or an entity “controlled” by an “investment company” as such terms are
defined in the Investment Company Act of 1940, as amended (the “
1940
Act
”).
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(xxv)
Environmental
Laws
. Except as described in the Registration Statement,
the Disclosure Package and the Prospectus and except as would not, singly
or in the aggregate, result in a Material Adverse Effect, (A) the Company
is not in violation of any federal, state, local or foreign statute, law,
rule, regulation, ordinance, code, policy or rule of common law or any
judicial or administrative interpretation thereof, including any judicial
or administrative order, consent, decree or judgment, relating to
pollution or protection of human health, the environment (including,
without limitation, ambient air, surface water, groundwater, land surface
or subsurface strata) or wildlife, including, without limitation, laws and
regulations relating to the release or threatened release of chemicals,
pollutants, contaminants, wastes, toxic substances, hazardous substances,
petroleum or petroleum products (collectively, “
Hazardous
Materials
”) or to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of Hazardous Materials
(collectively, “
Environmental
Laws
”), (B) the Company has all permits, authorizations and
approvals required under any applicable Environmental Laws and is in
compliance with their requirements, (C) there are no pending, or to the
knowledge of the Company, threatened administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens, notices
of noncompliance or violation, investigation or proceedings relating to
any Environmental Law against the Company and (D) to the knowledge of the
Company, there are no events or circumstances that could reasonably be
expected to form the basis of an order for clean-up or remediation, or an
action, suit or proceeding by any private party or governmental body or
agency, against or affecting the Company relating to Hazardous Materials
or Environmental Laws.
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(xxvi)
Internal
Controls
. (i) The Company has established and
maintains the following:
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(I) a
system of “internal accounting controls” as contemplated in Section
13(b)(2)(B) of the 1934 Act (the “
Accounting
Controls
”);
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(II) “disclosure
controls and procedures” as such term is defined in Rule 13a-15(e) under
the 1934 Act (the “
Disclosure
Controls
”); and
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(III) “internal
control over financial reporting” as such term is defined in Rule
13a-15(f) under the 1934 Act (the “
Reporting
Controls
” and, together with the Accounting Controls and the
Disclosure Controls, the “
Internal
Controls
”);
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(B) The
Internal Controls are evaluated by the Company periodically as appropriate
and, in any event, as required by
law;
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(C) Based
on the most recent evaluations of the Accounting Controls, the Accounting
Controls perform the functions for which they were established in all
material respects;
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(D) As
of the most recent date as of which the effectiveness of the design and
operation of the Disclosure Controls were evaluated by the Company, the
Disclosure Controls were effective to provide reasonable assurance that
material information relating to the Company and its subsidiaries that is
required to be disclosed in reports filed with, or submitted to, the
Commission under the 1934 Act (I) is recorded, processed, summarized and
reported within the time periods specified by the Commission rules and
forms and (II) is accumulated and communicated to management, including
its chief executive officer and chief financial officer, as appropriate,
to allow timely decisions regarding required disclosure;
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(E) As
of December 31, 2007 (the most recent date as of which the Reporting
Controls were evaluated by the Company), the Reporting Controls were
effective based on the framework in Internal Control--Integrated Framework
issued by the Committee of Sponsoring Organizations of the Treadway
Commission; and
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(F) Since
the respective dates as of which the Internal Controls were last
evaluated, nothing has come to the attention of the Company that has
caused the Company to conclude that (I) the Accounting Controls do not
perform the functions for which they were established in all material
respects or (II) the Disclosure Controls are not effective (within the
meaning of the evaluation standards identified above).
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(xxvii)
Compliance
with Sarbanes Oxley
. The Company is in compliance in all
material respects with the Sarbanes-Oxley Act of 2002 and the rules and
regulations of the Commission that have been adopted thereunder, all to
the extent that such Act and such rules and regulations are in effect and
applicable to the Company.
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(b)
Officer’s
Certificates
. Any certificate signed by any officer of the
Company delivered to the Underwriters or to counsel for the Underwriters in
connection with the offer and sale of the Securities shall be deemed a
representation and warranty by the Company to each Underwriter as to the matters
covered thereby.
SECTION
2.
Sale and
Delivery to Underwriters; Closing; Covenants of the
Underwriters
.
(a)
Securities
. On
the basis of the representations and warranties herein contained and subject to
the terms and conditions herein set forth, the Company agrees to sell to each
Underwriter, severally and not jointly, and each Underwriter, severally and not
jointly, agrees to purchase from the Company, at a purchase price of 96.042% of
the principal amount thereof, plus accrued interest from November 16, 2007 to
the Closing Time (as herein defined) the aggregate principal amount of
Securities set forth in Schedule A opposite the name of such Underwriter, plus
any additional principal amount of Securities which such Underwriter may become
obligated to purchase pursuant to the provisions of Section 10
hereof.
(b)
Payment
. Payment
of the purchase price for, and delivery of certificates for, the Securities
shall be made at the offices of Covington & Burling LLP at 1201 Pennsylvania
Avenue, NW, Washington, DC 20004, or at such other place as shall be agreed upon
by the Representatives and the Company, at 9:00 A.M. (Eastern time) on the
fifth business day after the date hereof (unless postponed in accordance with
the provisions of Section 10), or such other time not later than ten
business days after such date as shall be agreed upon by the Representatives and
the Company (such time and date of payment and delivery being herein called
“
Closing
Time
”).
Payment
shall be made to the Company by wire transfer of immediately available funds to
a bank account designated by the Company, against delivery to the
Representatives for the respective accounts of
the
Underwriters of certificates for the Securities to be purchased by
them. It is understood that each Underwriter has authorized the
Representatives, for its account, to accept delivery of, receipt for, and to
make payment of the purchase price for, the Securities which it has agreed to
purchase. Either or both of the Representatives, individually and not
as representatives of the Underwriters, may (but shall not be obligated to) make
payment of the purchase price for the Securities to be purchased by any
Underwriter whose funds have not been received by the Closing Time, but such
payment shall not relieve such Underwriter from its obligations
hereunder.
(c)
Denominations;
Registration
. The Securities shall be in such denominations
($1,000 or integral multiples thereof) and registered in such names as the
Representatives may request in writing at least one full business day before the
Closing Time. The Securities will be made available for examination
and packaging by the Representatives in Washington D.C. not later than
10:00 A.M. (Eastern time) on the business day prior to the Closing
Time.
(d)
Delivery of Global
Securities.
In lieu of the delivery to the Underwriters of
certificates representing the Securities at the Closing Time, as contemplated
above, the Company, with the approval of the Representatives, may deliver one or
more global Securities to a custodian for The Depository Trust Company (“
DTC
”), to be
held by DTC initially for the accounts of the several
Underwriters.
(e)
Notice of
Completion
. Promptly after the completion of the distribution
of the Securities by the Underwriters, JPMorgan on behalf of the Underwriters
shall deliver to the Company a notice in writing confirming the completion of
the distribution (the “
Notice of
Completion
”).
(f)
Use of Free Writing
Prospectuses.
Each Underwriter, severally and not jointly,
represents and agrees that it has not made and, without the prior written
consent of the Company and the Representatives, will not make any offer relating
to the Securities that would constitute a “free writing prospectus” (as defined
in Rule 405 of the 1933 Act Regulations (“
Rule 405
”))
that the Company would be required to file with the Commission under Rule 433,
except the Term Sheet to be prepared and filed in accordance with Section
3(a).
SECTION
3.
Covenants
of the Company.
(a)
Preparation and
Filing of Term Sheet.
The Company will prepare a term sheet
(the “
Term
Sheet
”), containing solely a description of the final terms of the
Securities and the offering thereof, in the form attached as Schedule C hereto,
and after affording the Representatives the opportunity to comment thereon, file
the Term Sheet with the Commission pursuant to Rule 433(d) within the time
required by such Rule.
(b)
Preparation and
Filing of the Prospectus
. The Company will prepare the
Prospectus and, after affording the Representatives the opportunity to comment
thereon, file the Prospectus with the Commission in accordance with Rule 424(b)
not later than the Commission’s close of business on the second business day
following the execution and delivery of this Agreement.
(c)
Review of
Amendments and Supplements
. The Company will not amend the
Registration Statement, or amend or supplement the Prospectus or the Term Sheet,
prior to the delivery of the Notice of Completion without providing notice to
the Representatives at least 24 hours, or such shorter period as is reasonably
required by the circumstances, prior to the filing thereof with the
Commission. Except in the case of any such amendment or supplement to
be made by the filing under the 1934 Act of a document that will be incorporated
by reference in the Registration Statement or the Prospectus that would be made
by the Company irrespective of the offer and sale of the Securities, the Company
will not effect such amendment or supplement without the consent of the
Representatives on behalf of the
Underwriters,
such consent not to be unreasonably withheld or delayed. Neither the
consent of the Representatives, nor the delivery of any such amendment or
supplement by any Underwriter, shall constitute a waiver of any of the
conditions set forth in Section 5 hereof.
Prior to
the delivery of the Notice of Completion, the Company will notify the
Representatives immediately, and confirm such notice in writing, when any
post-effective amendment to the Registration Statement shall have been filed or
shall become effective and when any supplement to the Prospectus or any amended
Prospectus shall have been filed.
(d)
Free Writing
Prospectuses
. Other than any Issuer Free Writing Prospectus
listed on Schedule B and the Term Sheet to be prepared and filed in accordance
with Section 3(a), the Company has not made and, without the consent of the
Representatives, will not make any offer relating to the Securities that would
constitute a “free writing prospectus” as defined by Rule 405, including an
Issuer Free Writing Prospectus.
(e)
Notification of
Commission Comments and Orders, Etc
. The Company will notify
the Representatives of (i) the receipt of any comments from the Commission with
respect to the Registration Statement, any Preliminary Prospectus, any Issuer
Free Writing Prospectus or the Prospectus, including any request by the
Commission for any amendment, supplement or additional information with respect
thereto, (ii) the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or of any order preventing or
suspending the use of any Preliminary Prospectus, any Issuer Free Writing
Prospectus or the Prospectus or the initiation or threatening of any proceeding
for such purpose. The Company will make every reasonable effort to
prevent the issuance of any stop order and, in the event of any stop order, to
obtain the lifting thereof as soon as possible.
(f)
Delivery of
Registration Statements
. The Company will deliver to each of
the Representatives and to counsel for the Underwriters, upon request and
without charge, one conformed copy of the Registration Statement as originally
filed and of each amendment thereto (including, in each case, all exhibits filed
therewith or incorporated by reference). Such copies of the
Registration Statement and amendments thereto so furnished to the
Representatives will be identical to the copies thereof filed electronically
with the Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
(g)
Delivery of
Prospectuses
. The Company has delivered to each Underwriter,
without charge, as many copies of any Preliminary Prospectus and any Issuer Free
Writing Prospectus as such Underwriter reasonably requested, and the Company
hereby consents to the use of such copies by the Underwriters for purposes of
the offer and sale of the Securities in a manner consistent with the 1933 Act
and the 1933 Act Regulations. The Company will furnish to each
Underwriter, without charge, during the period when the Prospectus (or, in lieu
thereof, the notice referred to in Rule 173(a) under the 1933 Act) is required
to be delivered under the 1933 Act, such number of copies of the Prospectus (and
any supplements thereto and amendments thereof) as such Underwriter may
reasonably request. Such copies of the Prospectus (and supplements
thereto and amendments thereof) so furnished to the Underwriters will be
identical to the copies thereof filed electronically with the Commission
pursuant to EDGAR (except that the registration fee table will be deleted from
the cover thereof), except to the extent permitted by Regulation
S-T.
(h)
Continued
Compliance with Securities Laws
. (i) Until the
Notice of Completion has been delivered, the Company will file all reports and
other documents that it is required to file with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act within the time periods
required by the 1934 Act and the 1934 Act Regulations and will otherwise comply
with the 1933 Act, the
1933 Act
Regulations, the 1934 Act and the 1934 Act Regulations so as to permit the
completion of the distribution of the Securities as contemplated in this
Agreement and the Prospectus.
(ii) The
Company will notify the Representatives promptly if, prior to the delivery of
the Notice of Completion, (A) any filing is made by the Company of information
relating to the offering of the Securities with any securities exchange or any
other regulatory body in the United States or any other jurisdiction or (B) any
material change occurs in or affecting the business, condition (financial or
otherwise) or results of operations of the Company and its subsidiaries
considered as one enterprise that (I) is not disclosed in the Registration
Statement or the Prospectus or (II) makes any statement in the Registration
Statement or the Prospectus false or misleading.
(iii) Upon
any notification pursuant to clause (ii)(B) above, or if prior to delivery of
the Notice of Completion any event shall occur as a result of which it is
necessary, in the reasonable judgment of the Company or of the Underwriters, (A)
to amend the Registration Statement in order that it does not, as of the
Effective Time, include any untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements therein not misleading
or otherwise to comply with the requirements of the 1933 Act or the 1933 Act
Regulations or (B) to amend the Prospectus in order that it does not, as of the
time it (or, in lieu thereof, the notice referred to in Rule 173(a) under the
1933 Act) is delivered to purchasers, does not contain any untrue statement of
material fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances existing at such time, not
misleading or otherwise to comply with the requirements of the 1933 Act or the
1933 Act Regulations, the Company will promptly prepare and file with the
Commission, subject to Section 3(c), such amendment or supplement as may be
necessary to correct such statement or omission or to make the Registration
Statement or the Prospectus comply with such requirements, and the Company will
furnish to the Underwriters such number of copies of such amendment or
supplement as the Underwriters may reasonably request.
(i)
Blue Sky
Qualifications
. The Company will use its best efforts, in
cooperation with the Underwriters, to take such action, if any, as may be
required to qualify the Securities for offering and sale under the applicable
securities laws of such states and other jurisdictions as the Representatives
may designate and to maintain such qualifications in effect as long as required
for the distribution of the Securities;
provided
,
however
,
that the Company shall not be obligated to file any general consent to service
of process or to qualify as a foreign corporation or as a dealer in securities
in any jurisdiction in which it is not so qualified or to subject itself to
taxation in respect of doing business in any jurisdiction in which it is not
otherwise so subject. The Company will notify the Representatives
of the suspension of the qualification of the Securities for offering or
sale in any jurisdiction, or of the initiation or threatening of any proceedings
for any of such purposes. The Company will make every reasonable
effort to prevent any such suspension and, in the event of any such suspension,
to obtain the lifting thereof as soon as possible.
(j)
Rule
158
. The Company will timely file such reports pursuant to the
1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act and Rule 158 thereunder.
(k)
Filing
Fees
. The Company agrees to pay the required Commission filing
fees relating to the Securities within the time required by Rule 456(b)(1) of
the 1933 Act Regulations and otherwise in accordance with Rules 456(b) and
457(r) of the 1933 Act Regulations.
(l)
Use of
Proceeds
. The Company will use the net proceeds received by it
from the sale of the Securities in the manner specified in the Prospectus under
“Use of Proceeds”.
(m)
Restriction on Sale
of Securities
. The Company will not offer, sell, contract to
sell, pledge or otherwise dispose of, directly or indirectly, or file with the
Commission a registration statement under the 1933 Act relating to debt
securities issued or guaranteed by the Company and having a maturity of more
than one year from the date of issue, or publicly disclose the intention to make
any such offer, sale, pledge, disposition or filing, without the prior written
consent of the Representatives for a period beginning at the date of this
Agreement and ending at the later of the Closing Time or the date of receipt by
the Company of a Notice of Completion.
SECTION
4.
Payment of
Expenses.
(a)
Expenses Payable by
the Company
. The Company will pay all expenses incident to the
performance of its obligations under this Agreement, including (i) the
preparation, printing and filing of the Registration Statement (including
financial statements and exhibits) as originally filed and of each amendment
thereto, (ii) the preparation, printing and delivery to the Underwriters of
this Agreement, any agreement among underwriters, the Indenture, the Mortgage
and such other documents as may be required in connection with the offering,
purchase, sale, issuance or delivery of the Securities, (iii) the
preparation, issuance and delivery of the certificate or certificates for the
Securities to the Underwriters, (iv) the fees and disbursements of the
Company’s counsel, accountants and other advisors, (v) the qualification of
the Securities under securities laws in accordance with the provisions of
Section 3(i) hereof, including filing fees and the reasonable fees (not to
exceed $5,000) and disbursements of counsel for the Underwriters in connection
therewith and in connection with the preparation of any Blue Sky survey and any
supplement thereto, (vi) the printing and delivery to the Underwriters of
copies of each Preliminary Prospectus, Issuer Free Writing Prospectus and of the
Prospectus and any amendments or supplements thereto, (vii) the
preparation, printing and delivery to the Underwriters of copies of any Blue Sky
survey and any supplement thereto, (viii) the fees and expenses of the Trustee
and the Mortgage Trustee, including the fees and disbursements of its counsel,
and (ix) any fees payable in connection with the rating of the
Securities.
(b)
Expenses Upon
Termination
. If this Agreement is terminated by the
Underwriters in accordance with the provisions of Section 5 or
Section 9(a)(i) hereof, the Company shall reimburse the Underwriters for
all of their out-of-pocket expenses incurred in connection with the transactions
contemplated hereby, including the reasonable fees and disbursements of counsel
for the Underwriters.
SECTION
5.
Conditions
of Underwriters’ Obligations
.
The
obligations of the several Underwriters hereunder are subject to the accuracy,
as of the date of this Agreement, as of the Applicable Time and as of the
Closing Time, of the representations and warranties of the Company contained in
Section 1 hereof and in all certificates of officers of the Company delivered
pursuant to the provisions hereof, to the performance by the Company of its
covenants and other obligations hereunder to be performed at or prior to the
Closing Time, and to the following further conditions:
(a)
No Stop Order;
Commission Filings
. At the Closing Time no stop order
suspending the effectiveness of the Registration Statement shall have been
issued under the 1933 Act or proceedings therefor initiated or threatened by the
Commission and the Company shall not have received from the Commission any
notice pursuant to Rule 401(g)(2) of the 1933 Act Regulations objecting to use
of the automatic shelf registration statement form, and any request on the part
of the Commission for additional information shall have been complied with to
the reasonable satisfaction of counsel to the Underwriters. The
Prospectus shall have been filed with the Commission in accordance with Rule
424(b). The Term Sheet, and any other material required to be filed
by the Company pursuant to Rule 433(d), shall have
been
filed with the Commission in accordance with the applicable time periods
prescribed for such filings under Rule 433.
(b)
Opinions of Counsel
for Company
. At Closing Time, the Representatives shall have
received the opinions, dated the date of the Closing Time, of Kirk J. Emge,
Esq., General Counsel of the Company, and Covington & Burling LLP, counsel
for the Company, substantially in the form of Exhibits A and B hereto,
respectively, together with signed or reproduced copies thereof for each of the
other Underwriters.
(c)
Opinion of Counsel
for Underwriters
. At Closing Time, the Representatives shall
have received the opinion, dated the date of the Closing Time, of Dewey &
LeBoeuf LLP, counsel for the Underwriters, as to such matters as the
Representatives shall reasonably request, together with signed or reproduced
copies of such letter for each of the other Underwriters. In giving
such opinion such counsel may rely, as to all matters governed by the laws of
jurisdictions other than the law of the State of New York and the federal law of
the United States upon the opinions of counsel to the Company. Such
counsel may also state that, insofar as such opinion involves factual matters,
they have relied, to the extent they deem proper, upon certificates of officers
of the Company and certificates of public officials.
(d)
Officers’
Certificate
. At Closing Time, (i) there shall not have been
(A) since the date of the latest audited balance sheet included in the
Disclosure Package and except as disclosed therein or (B) since the Applicable
Time, any Material Adverse Change and (ii) the Representatives shall have
received a certificate of the President or a Vice President of the Company and
of the chief financial or chief accounting officer of the Company, dated the
date of the Closing Time, to the effect that (A) there has been no such
Material Adverse Change, (B) the representations and warranties in
Section 1(a) hereof are true and correct with the same force and effect as
though expressly made at and as of Closing Time, (C) the Company has
complied with all agreements and satisfied all conditions on its part required
by this Agreement to be performed or satisfied at or prior to Closing Time, and
(D) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are pending or, to the knowledge of the signers, contemplated by
the Commission.
(e)
Accountant’s
Comfort Letter
. On the date of this Agreement, the
Representatives shall have received from PricewaterhouseCoopers LLP a letter
dated such date, in form and substance reasonably satisfactory to the
Representatives, together with signed or reproduced copies of such letter for
each of the other Underwriters, containing statements and information of the
type customarily included in accountants’ “comfort letters” to underwriters with
respect to the financial statements of, and certain financial information
relating to, the Company contained in the Registration Statement and the
Prospectus.
(f)
Bring-down Comfort
Letter.
At Closing Time, the Representatives shall have
received from PricewaterhouseCoopers LLP a letter, dated the date of the Closing
Time, to the effect that such firm reaffirms the statements made in the letter
furnished pursuant to subsection (e) of this Section, except that the specified
date referred to therein shall be a date not more than three business days prior
to Closing Time.
(g)
Maintenance of
Rating
. After the execution of this Agreement and prior to the
Closing Time, no rating of any of the Company’s debt securities shall have been
reduced, suspended or withdrawn and there shall have been no public announcement
that any such debt securities have been placed on CreditWatch, Watchlist, or
under any similar surveillance or review, in each case with negative
implications, by Moody’s Investor’s Service Inc. or Standard & Poor’s
Ratings Services, a division of The McGraw-Hill Companies, Inc., or any
successor agencies thereto.
(h)
Additional
Documents
. At Closing Time, counsel for the Underwriters shall
have been furnished with such additional documents and opinions as they may
reasonably require for the purpose of enabling them to pass upon the issuance
and sale of the Securities as herein contemplated, or in order to evidence the
accuracy of any of the representations or warranties, or the fulfillment of any
of the conditions, herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of the Securities as herein contemplated
shall be reasonably satisfactory in form and substance to the Representatives
and counsel for the Underwriters.
(i)
Termination of
Agreement
. If any condition specified in this Section shall
not have been fulfilled when and as required to be fulfilled, this Agreement may
be terminated by the Representatives by notice to the Company at any time at or
prior to Closing Time, and such termination shall be without liability of any
party to any other party, except as provided in Section 4 and except that
Sections 1, 6, 7 and 8 shall survive any such termination and remain in full
force and effect.
SECTION
6.
Indemnification
.
(a)
Indemnification of
Underwriters
. The Company agrees to indemnify and hold
harmless each Underwriter, its directors and officers and each person, if any,
who controls any Underwriter, within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act as follows:
(i)
against
any and all loss, liability, claim, damage and expense whatsoever, as incurred,
(A) arising out of any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement (or any amendment
thereto), or the omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the statements therein not
misleading or (B) arising out of any untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus, any Issuer
Free Writing Prospectus or the Prospectus (or any amendment or supplement
thereto) or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii)
against
any and all loss, liability, claim, damage and expense whatsoever, as incurred,
to the extent of the aggregate amount paid in settlement of any litigation, or
any investigation or proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any untrue statement or
omission, or any alleged untrue statement or omission in either case of the
nature described in clause (i) above;
provided
that any such settlement is effected with the written consent of the Company;
and
(iii)
against
any and all expense whatsoever, as incurred (including the fees and
disbursements of counsel chosen by the Representatives), reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to the extent that
any such expense is not paid under (i) or (ii) above;
provided
,
however
,
that this indemnity agreement shall not apply to any loss, liability, claim,
damage or expense to the extent arising out of any untrue statement or omission
or alleged untrue statement or omission made in reliance upon and in conformity
with written information furnished to the Company by any Underwriter through the
Representatives expressly for use in the Registration Statement (or any
amendment thereto), any Preliminary Prospectus, any Issuer Free Writing
Prospectus or the Prospectus (or any amendment or supplement
thereto).
(b)
Indemnification of
Company, Directors and Officers
. Each Underwriter severally
agrees to indemnify and hold harmless the Company, its directors and officers,
and each person, if any, who controls the Company within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act against any and all loss,
liability, claim, damage and expense described in subsection (a) of this
Section, as incurred, but only with respect to untrue statements or omissions,
or alleged untrue statements or omissions, made in the Registration Statement
(or any amendment thereto) or any Preliminary Prospectus, Issuer Free Writing
Prospectus or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by such Underwriter through the Representatives expressly for use
therein.
(c)
Actions against
Parties; Notification
. Each indemnified party shall give
notice as promptly as reasonably practicable to each indemnifying party of any
action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section
6(a), counsel to the indemnified parties shall be selected by the
Representatives, and, in the case of parties indemnified pursuant to Section
6(b), counsel to the indemnified parties shall be selected by the
Company. An indemnifying party may participate at its own expense in
the defense of any such action;
provided
,
however
,
that counsel to the indemnifying party shall not (except with the consent of the
indemnified party) also be counsel to the indemnified party. In no
event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party
shall, without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification could be sought under this Section 6 or contribution could
be sought under Section 7 hereof (whether or not the indemnified parties are
actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or claim and
(ii) does not include a statement as to or an admission of fault, culpability or
a failure to act by or on behalf of any indemnified party.
SECTION
7.
Contribution.
If the
indemnification provided for in Section 6 hereof is for any reason
unavailable to or insufficient to hold harmless an indemnified party in respect
of any losses, liabilities, claims, damages or expenses referred to therein,
then each indemnifying party shall contribute to the aggregate amount of such
losses, liabilities, claims, damages and expenses incurred by such indemnified
party, (i) in such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and the Underwriters on the other hand
from the offering of the Securities pursuant to this Agreement or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and of the Underwriters on the other hand in connection with the statements
or omissions which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
The
relative benefits received by the Company on the one hand and the Underwriters
on the other hand in connection with the offering of the Securities pursuant to
this Agreement shall be deemed to be in the same respective proportions as the
total net proceeds from the offering of the Securities pursuant to
this
Agreement (before deducting expenses) received by the Company and the total
underwriting discounts and commissions received by the Underwriters, in each
case as set forth on the cover of the Prospectus bear to the aggregate initial
public offering price of the Securities as set forth on such cover.
The
relative fault of the Company on the one hand and the Underwriters on the other
hand shall be determined by reference to, among other things, whether any such
untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by the Company
or by the Underwriters and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission.
The
Company and the Underwriters agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by pro rata allocation
(even if the Underwriters were treated as one entity for such purpose) or by any
other method of allocation which does not take account of the equitable
considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding
the provisions of this Section 7, no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the
Securities underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter has otherwise
been required to pay by reason of any such untrue or alleged untrue statement or
omission or alleged omission.
No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the 1933 Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
For
purposes of this Section 7, each person, if any, who controls an Underwriter
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
shall have the same rights to contribution as such Underwriter, and each
director of the Company, each officer of the Company, and each person, if any,
who controls the Company within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as the
Company. The Underwriters’ respective obligations to contribute
pursuant to this Section 7 are several in proportion to the principal amount of
Securities set forth opposite their respective names in Schedule A hereto and
not joint.
SECTION
8.
Representations,
Warranties and Agreements to Survive
.
All of
the respective representations, warranties and agreements of the Company and the
several Underwriters contained in this Agreement, or in certificates of officers
of the Company delivered pursuant to this Agreement, shall remain operative and
in full force and effect, regardless of any investigation made by or on behalf
of any Underwriter or controlling person of any Underwriter, or by or on behalf
of the Company, or any director, officer or controlling person of the Company,
and shall survive delivery of and payment for the Securities.
SECTION
9.
Termination
of Agreement
.
(a)
Termination;
General
. The Representatives may terminate this Agreement, by
notice to the Company, at any time at or prior to Closing Time (i) if there
has been (A) since the date of the latest
audited
balance sheet included in the Disclosure Package and except as disclosed therein
or (B) since the Applicable Time, any Material Adverse Change, or (ii) if
there has occurred any material adverse change in the financial markets in the
United States or in the international financial markets, any outbreak of
hostilities or escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which is
such as to make it, in the judgment of the Representatives, impracticable or
inadvisable to offer, sell or deliver the Securities or to enforce contracts for
the sale of the Securities, or (iii) if trading in any securities of the
Company has been suspended or materially limited by the Commission or the New
York Stock Exchange, or if trading generally on the New York Stock Exchange or
the American Stock Exchange or in the NASDAQ Global Market or the NASDAQ Global
Select Market has been suspended or materially limited, or minimum or maximum
prices for trading have been fixed, or maximum ranges for prices have been
required, by either of such exchanges or Nasdaq Stock Market, Inc. with respect
to such markets or by order of the Commission or any other governmental
authority, or (iv) a material disruption has occurred in commercial banking or
securities settlement or clearance services in the United States, or (v) if a
banking moratorium has been declared by either Federal or New York
authorities.
(b)
Liabilities
. If
this Agreement is terminated pursuant to this Section, such termination shall be
without liability of any party to any other party except as provided in Section
4 hereof; and provided, further, that Sections 1, 6, 7 and 8 shall survive such
termination and remain in full force and effect.
SECTION
10.
Default by
One or More of the Underwriters
.
If one or
more of the Underwriters shall fail at Closing Time to purchase the Securities
which it or they are obligated to purchase under this Agreement (the “
Defaulted
Securities
”), the non-defaulting Underwriters shall have the right,
within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Defaulted Securities in such amounts as may be agreed upon
and upon the terms herein set forth. If, however, the non-defaulting
Underwriters shall not have completed such arrangements within such 24-hour
period, then:
(a)
if the
amount of Defaulted Securities does not exceed 10% of the aggregate principal
amount of the Securities to be purchased hereunder, each of the non-defaulting
Underwriters shall be obligated, severally and not jointly, to purchase the full
amount thereof in the proportions that their respective underwriting obligations
hereunder bear to the underwriting obligations of all non-defaulting
Underwriters, or
(b)
if the
amount of Defaulted Securities exceeds 10% of the aggregate principal amount of
the Securities to be purchased hereunder, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter or the Company, except
as provided in Section 4 and except that Sections 1, 6, 7 and 8 shall survive
any such termination and remain in full force and effect with respect to any
non-defaulting Underwriter.
No action
taken pursuant to this Section shall relieve any defaulting Underwriter from
liability in respect of its default.
In the
event of any such default which does not result in a termination of this
Agreement, either the Representatives or the Company shall have the right to
postpone Closing Time for a period not exceeding seven days in order to effect
any required changes in the Registration Statement or the Prospectus or in any
other documents or arrangements. As used in this Agreement, the term
“Underwriter” includes any person substituted for an Underwriter under this
Section 10.
SECTION
11.
Notices
.
All notices,
requests and other communications hereunder shall be in writing and shall be
deemed to have been duly given if received by mail or transmitted by any
standard form of telecommunication. Notices to the Underwriters shall
be directed to the Representatives at Citigroup Global Markets Inc., 388
Greenwich Street, New York, New York 10013, Attention: General Counsel; J.P.
Morgan Securities Inc., 270 Park Avenue, New York, New York 10017, Attention:
High Grade Syndicate Desk; and notices to the Company shall be directed to it at
701 Ninth Street, N.W., Washington, D.C. 20068, attention of
Treasurer.
SECTION
12.
Parties in
Interest
.
This
Agreement shall inure to the benefit of and be binding upon the Underwriters and
the Company and their respective successors. Nothing expressed in
this Agreement is intended or shall be construed to give any person, firm or
corporation, other than the Underwriters and the Company and their respective
successors and the controlling persons and officers and directors referred to in
Sections 6 and 7 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and
provisions hereof are intended to be for the sole and exclusive benefit of the
Underwriters and the Company and their respective successors, and said
controlling persons and officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Securities from any Underwriter shall be
deemed to be a successor by reason merely of such purchase.
SECTION
13.
No Advisory
or Fiduciary Relationship
.
The
Company acknowledges and agrees that (a) the purchase and sale of the Securities
pursuant to this Agreement, including the determination of the public offering
price of the Securities and any related discounts and commissions, is an
arm’s-length commercial transaction between the Company, on the one hand, and
the several Underwriters, on the other hand, (b) in connection with the offering
contemplated hereby and the process leading to such transaction each Underwriter
is and has been acting solely as a principal and is not the agent or fiduciary
of the Company, or its stockholders, creditors, employees or any other party,
(c) no Underwriter has assumed or will assume an advisory or fiduciary
responsibility in favor of the Company with respect to the offering contemplated
hereby or the process leading thereto (irrespective of whether such Underwriter
has advised or is currently advising the Company on other matters) and no
Underwriter has any obligation to the Company with respect to the offering
contemplated hereby except the obligations expressly set forth in this
Agreement, (d) the Underwriters and their respective affiliates may be engaged
in a broad range of transactions that involve interests that differ from those
of the Company and (e) the Underwriters have not provided any legal, accounting,
regulatory or tax advice with respect to the offering contemplated hereby and
the Company has consulted its own legal, accounting, regulatory and tax advisors
to the extent it deemed appropriate.
SECTION
14.
Governing
Law and Time
.
This agreement shall
be governed by and construed in accordance with the laws of the State of New
York.
Specified times of day refer to New York City
time.
SECTION
15.
Counterparts
.
This
Agreement may be executed in counterparts, each of which shall be deemed to be
an original, but all such counterparts shall together constitute one and the
same agreement.
SECTION
16.
Entire
Agreement
.
This
Agreement supersedes all prior agreements and understandings (whether written or
oral) between the Company and the Underwriters, or any of them, with respect to
the subject matter of this Agreement.
SECTION
17.
Effect of
Headings
.
The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
If the
foregoing is in accordance with your understanding of our agreement, please sign
and return to the Company a counterpart hereof, whereupon this instrument, along
with all counterparts, will become a binding agreement between the Underwriters
and the Company in accordance with its terms.
|
|
Potomac
Electric Power Company
|
|
|
Name: Anthony
J. Kamerick
|
|
|
Title: Vice
President and Treasurer
|
Confirmed
And Accepted,
as
of the date first above written:
Citigroup
Global Markets Inc.
J.P.
Morgan Securities Inc.
B
y:
J.P. Morgan
Securities Inc.
By:
/s/
ROBERT
BOTTAMEDI
Name: Robert
Bottamedi
Title: Vice
President
For
themselves and as Representatives of the other Underwriters named in Schedule A
hereto.
SCHEDULE
A
|
Name of
Underwriter
|
Principal Amount of
Securities
|
|
|
|
|
Citigroup
Global Markets Inc.
|
$ 87,500,000
|
|
J.P.
Morgan Securities Inc.
|
87,500,000
|
|
SunTrust
Robinson Humphrey, Inc.
|
25,000,000
|
|
BNY
Capital Markets, Inc.
|
12,500,000
|
|
Mizuho
Securities USA Inc.
|
12,500,000
|
|
Wachovia
Capital Markets, LLC
|
12,500,000
|
|
The
Williams Capital Group, L.P.
|
12,500,000
|
|
|
|
|
|
|
Total
|
$250,000,000
|
SCHEDULE
B
Issuer
Free Writing Prospectuses
1. Term
Sheet attached as Schedule C hereto
SCHEDULE
C
|
|
|
Filed Pursuant to Rule 433
Registration
No. 333-145691-03
March
24, 2008
|
|
|
POTOMAC ELECTRIC POWER COMPANY
|
|
|
|
$250,000,000
|
|
|
6.50%
Senior Notes due 2037
|
|
Issuer:
|
Potomac
Electric Power Company
|
|
Issue:
|
6.50%
Senior Notes due 2037
|
|
Ratings:*
|
Baa1
(stable) /BBB+ (stable) /A (stable)
(Moody’s/S&P/Fitch)
|
|
Offering
Size:
|
$250,000,000
(Reopening of $250,000,000 of 6.50% Senior Notes due 2037 issued on
November 16, 2007)
|
|
Coupon:
|
6.50%
|
|
Trade
Date:
|
March
24, 2008
|
|
Settlement
Date:
|
March
31, 2008 (T+5)
|
|
Stated
Maturity:
|
November
15, 2037
|
|
Initial
Public Offering Price:
|
96.917%
per Note plus accrued interest from November 16,
2007
|
|
Proceeds
to Issuer (before expenses and accrued interest):
|
$240,105,000
|
|
Yield
to Maturity:
|
6.741%
|
|
Benchmark
Treasury:
|
5.00%
due May 15, 2037
|
|
Benchmark
Treasury Yield:
|
4.291%
|
|
Spread
to Benchmark Treasury:
|
+245
bps
|
|
Optional
Redemption:
|
Make-whole
call, 35 bps spread over U.S. Treasuries
|
|
Interest
Payment Dates:
|
May
15 and November 15 of each year, commencing on
May 15, 2008
|
|
Initial
Interest Accrual Date:
|
November
16, 2007
|
|
Accrued
Interest Payable to Issuer:
|
$6,093,750
accrued from November 16, 2007 to but excluding March 31,
2008
|
|
CUSIP
Number:
|
737679
DB3
|
|
Bookrunners:
|
Citigroup
Global Markets Inc.
J.P.
Morgan Securities Inc.
|
* A
security rating is not a recommendation to buy, sell or hold securities and
should be evaluated independently of any other rating. The rating is subject to
revision or withdrawal at any time by the assigning rating
organization.
The
issuer has filed a registration statement (including a prospectus) with the
Securities and Exchange Commission (the “SEC”) for the offering to which the
communication relates. Before you invest, you should read the
prospectus in that registration statement and other documents the issuer has
filed with the SEC for more complete information about the issuer and this
offering. You may obtain these documents free by visiting EDGAR on
the SEC website at www.sec.gov. Alternatively, the issuer, any
underwriters or any dealer participating in the offering will arrange to send
you the prospectus if you request it by calling Citigroup Global Markets Inc. at
1-877-858-5407 or J.P. Morgan Securities Inc. at 1-212-834-4533.
Exhibit
A
Form
of Opinion of Kirk J. Emge, Esq.
to
be Delivered Pursuant to Section 5(b)
March 31,
2008
Citigroup
Global Markets Inc.
388
Greenwich Street
New York,
New York 10013
J.P.
Morgan Securities Inc.
270 Park
Avenue
New York,
New York 10017
as
Representatives of the Several Underwriters
Ladies
and Gentlemen:
I am
General Counsel of Potomac Electric Power Company, a District of Columbia and
Virginia corporation (the “Company”), and have acted as counsel to the Company
in connection with the issuance and sale of $250,000,000 in aggregate principal
amount of 6.50% Senior Notes due 2037 (the “Securities”) pursuant to the
Purchase Agreement, dated March 24, 2008, among the Company and Citigroup Global
Markets Inc. and J.P. Morgan Securities Inc., for themselves and as
representatives of the other underwriters named in Schedule A thereto (the
“Purchase Agreement”). The Securities will be issued as an additional
amount of the Company’s 6.50% Senior Notes due 2037 series of securities under
an indenture, dated as of November 17, 2003 (the “Original Indenture”), as
amended by a supplemental indenture dated March 31, 2008 (the “Indenture
Supplement”), between the Company and The Bank of New York, as trustee (the
“Trustee”), with the terms of the Securities set forth in an officer’s
certificate, dated November 16, 2007 (the “Original Officer’s Certificate”) and
a supplemental officer’s certificate, dated March 31, 2008 (the “Supplemental
Officer’s Certificate”). The Original Indenture, as amended by the
Indenture Supplement, and including the terms of the Securities as set forth in
the Original Officer’s Certificate and the Supplemental Officer’s Certificate,
is referred to herein as the “Indenture”.
In
connection with the issuance and sale by the Company of the Securities, the
Company will issue and deliver to the Trustee $250,000,000 in aggregate
principal amount of its First Mortgage Bonds, 6.50% Collateral Series 2 due 2037
(the “Collateral Bonds”). The Collateral Bonds will be issued under
the Mortgage and Deed of Trust, dated as of July 1, 1936, from the Company to
The Bank of New York (as successor trustee to The Riggs National Bank of
Washington, D.C.), as trustee (the “Mortgage Trustee”), as amended and
supplemented by various supplemental indentures including the supplemental
indenture, dated as of March 24, 2008 (the “Mortgage Supplement”), establishing
the terms of the Collateral Bonds (such Mortgage and Deed of Trust, as so
amended and supplemented, the “Mortgage”). This opinion is being
delivered to you in accordance with Section 5(b) of the Purchase
Agreement. Capitalized terms not defined herein have the respective
meanings set forth in the Purchase Agreement.
In
connection with rendering the opinions set forth herein, I, or my
representatives, have reviewed:
(i) the
Purchase Agreement;
(ii) the
Registration Statement on Form S-3, Registration No. 333-145691-03, filed with
the Securities and Exchange Commission (the “Commission”) on August 24, 2007
(the “Registration Statement”), registering,
inter alia
,
the Securities for sale under the Securities Act of 1933, as amended (the “1933
Act”);
(iii) the
preliminary prospectus, consisting of the prospectus, dated August 24, 2007 (the
“Base Prospectus”), as supplemented by a prospectus supplement, dated March 24,
2008, with respect to the offer and sale of the Securities, filed with the
Commission on March 24, 2008, pursuant to Rule 424(b) under the 1933 Act (as so
supplemented, the “Pricing Prospectus”);
(iv) the
term sheet, dated March 24, 2008, with respect to the offer and sale of the
Securities, filed with the Commission on March 24, 2008, pursuant to Rule 433(d)
under the 1933 Act (the “Term Sheet” and together with the Pricing Prospectus,
the “Disclosure Package”);
(v) the
final prospectus, dated March 24, 2008, consisting of the Base Prospectus, as
supplemented by a prospectus supplement, dated March 24, 2008, with respect to
the offer and sale of the Securities, filed with the Commission on March 25,
2008, pursuant to Rule 424(b) under the 1933 Act (as so supplemented, the
“Prospectus”);
(vi) the
Indenture;
(vii) the
Original Officer’s Certificate;
(viii)
the Supplemental Officer’s Certificate;
(ix) the
Indenture Supplement;
(x) the
Mortgage;
(xi) the
Mortgage Supplement;
(xii) a
facsimile copy of the Securities furnished by the Trustee; and
(xiiii) a
facsimile copy of the Collateral Bonds furnished by the Mortgage
Trustee.
I, or my
representatives, also have examined or caused to be examined originals, or
copies that have been certified or otherwise identified to my or their
satisfaction as being true copies, of such other instruments, certificates and
other documents or records as I or they have deemed necessary or appropriate to
enable me to render the opinions set forth below. In my or my
representatives’ review and examination, I or they have assumed the genuineness
of all signatures, the authenticity of all documents submitted to me or them as
originals, and the conformity to original documents of all documents submitted
to me or them as copies.
Based
upon the foregoing, and subject to the reservations and exceptions set forth
herein, I am of the opinion that:
1.
The
Company has been duly incorporated and is validly existing as a corporation in
good standing under the laws of each of the District of Columbia and the
Commonwealth of Virginia.
2.
The
Company has corporate power and authority to own or 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 Purchase
Agreement.
3.
The
Company is duly qualified as a foreign corporation to transact business and is
in good standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure so to qualify or to be in good standing would
not result in a Material Adverse Effect.
4.
All of
the shares of issued and outstanding capital stock of the Company have been duly
authorized and validly issued and are fully paid and non-assessable and are
owned by Pepco Holdings, Inc. None of the outstanding shares of
capital stock of the Company was issued in violation of the preemptive or other
similar rights of any securityholder of the Company.
5.
The
Purchase Agreement has been duly authorized, executed and delivered by the
Company.
6.
The
Indenture has been duly authorized, executed and delivered by the
Company.
7.
The
Securities have been duly authorized and executed by the Company, and when the
Securities have been (A) authenticated and delivered by the Trustee under the
Indenture and (B) issued and delivered by the Company against payment of the
purchase price therefor as provided in the Purchase Agreement, the Securities
will constitute valid securities within the meaning of Section 28:8-110(a)(1) of
the District of Columbia Uniform Commercial Code and Section 8.8A-110(a)(1) of
the Virginia Uniform Commercial Code.
8.
The
Mortgage has been duly authorized, executed and delivered by the Company and
constitutes a valid and binding instrument of the Company, enforceable against
the Company in accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and other laws of general
applicability relating to or affecting mortgagees’ and other creditors’ rights
and to general equity principles and except to the extent that the law of the
jurisdictions in which the mortgaged property is located may limit or deny
certain remedial provisions of the Mortgage.
9.
The
Collateral Bonds are in the form contemplated by the Mortgage, have been duly
authorized and executed by the Company, and when (A) the Collateral Bonds have
been (w) authenticated and delivered by the Mortgage Trustee under the Mortgage
and (x) issued and delivered by the Company to the Trustee as provided in the
Indenture and (B) the Securities have been (y) authenticated and delivered by
the Trustee under the Indenture and (z) issued and delivered by the Company
against payment of the purchase price therefor as provided in the Purchase
Agreement, the Collateral Bonds will constitute valid and binding obligations of
the Company, enforceable against the Company in accordance with their terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and other laws of general applicability relating to or affecting
creditors’ rights and to general equity principles, and will have been issued
and delivered in accordance with the terms, and will be entitled to the
benefits, of the Mortgage.
10.
The
Registration Statement is effective under the 1933 Act, and, to the best of my
knowledge, no stop order suspending the effectiveness of the Registration
Statement has been issued under Section 8(d) of the 1933 Act and no proceedings
for that purpose have been instituted by the Commission or are pending or
threatened by the Commission. The Pricing Prospectus and the
Prospectus have been filed in the manner and within the time period required by
Rule 424(b) under the 1933 Act and
the Term
Sheet has been filed in the manner and within the time period required by Rule
433(d) under the 1933 Act.
11.
The
documents incorporated by reference in the Prospectus (other than the financial
statements, including the notes thereto, the financial schedules and the other
financial data included or incorporated by reference therein, as to which I
express no opinion), when they were filed with the Commission, complied as to
form in all material respects with the requirements of the 1934 Act and the 1934
Act Regulations.
12.
The
execution, delivery and performance of the Indenture, the Mortgage and the
Purchase Agreement and the issuance and sale of the Securities and the issuance
and delivery of the Collateral Bonds and compliance with the terms thereof will
not result in a breach or violation of any of the terms and provisions of, or
constitute a default or Repayment Event under, or result in the creation or
imposition of any Lien (other than the Lien of the Mortgage and the Lien of the
Indenture) upon any property or assets of the Company under, (i) any statute,
any rule, regulation or order of any governmental agency or body or any court
having jurisdiction over the Company or any subsidiary of the Company or any of
their properties that in my experience customarily applies to transactions of
the type contemplated by the Purchase Agreement, the Indenture and the
Securities, (ii) any agreement or instrument to which the Company or any such
subsidiary is a party or by which the Company or any such subsidiary is bound or
to which any of the properties of the Company or any such subsidiary is subject,
or (iii) the articles of incorporation or by-laws of the Company or any such
subsidiary, except, in the cases of clauses (i) and (ii) above, for any such
breach, violation, default, Repayment Event or Lien that would not result in a
Material Adverse Effect; and the Company has full corporate power and authority
to authorize, issue and sell the Securities as contemplated by the Purchase
Agreement.
13.
Except as
disclosed in the Prospectus, there is not pending or, to the best of my
knowledge, threatened any action, suit, proceeding, inquiry or investigation, to
which the Company or any of its subsidiaries is a party, or to which the
property of the Company or any of its subsidiaries is subject, before or brought
by any court or governmental agency or body, domestic or foreign, which could
reasonably be expected to result in a Material Adverse Effect, or which could
reasonably be expected to materially and adversely affect the consummation of
the transactions contemplated in the Purchase Agreement or the performance by
the Company of its obligations thereunder.
14.
No
consent, approval, authorization or order of, or filing with, any governmental
agency or body or any court is required for the consummation of the transactions
contemplated by the Purchase Agreement in connection with the offering,
issuance, sale or delivery of the Securities and the Collateral Bonds by the
Company, except such as have already been obtained or such as may be required
under state securities laws, and the Company has complied, in all material
respects, with all terms and conditions contained in all such consents,
approvals, authorizations and orders as have been obtained.
15.
The
Company has good and marketable title to all real property owned by the Company
and described in the Mortgage as subject to the lien thereof, subject only to
such exceptions, defects and qualifications as do not (I) affect the value of
any such properties that are material to the business of the Company in any
material respect or (II) affect the use made or proposed to be made of such
properties by the Company in any material respect; and the descriptions of all
such property contained in the Mortgage are adequate for purposes of the lien
purported to be created by the Mortgage.
16.
The
Mortgage constitutes a valid first lien or charge, to the extent that it
purports to be such, upon the interest held by the Company in its property
covered by the Mortgage, subject only to such exceptions, defects,
qualifications and other matters as may be permitted by the Mortgage and to such
other matters as in my opinion do not materially affect the security for the
Collateral Bonds. The
Mortgage
(except for the Mortgage Supplement) has been duly recorded, and the Mortgage
Supplement has been duly filed for recordation as a mortgage of real estate, in
each county in which real property subject to the lien of the Mortgage is
located, and all requisite steps have been taken to perfect the security
interest of the Mortgage in personal property of the Company; and all taxes and
recording and filing fees required to be paid with respect to the execution,
recording or filing of the Mortgage, the filing of financing statements and
similar documents and the issuance of the Collateral Bonds have been
paid.
I am not
passing upon and do not assume responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement, the
Disclosure Package or the Prospectus and make no representations that I have
independently verified the accuracy, completeness or fairness of such
statements, except insofar as such statements refer specifically to
me. However, based on my examination of the Registration Statement,
the Disclosure Package and the Prospectus, on my general familiarity with the
affairs of the Company and on my participation in conferences with officials and
other representatives of, and other counsel for, the Company, with
PricewaterhouseCoopers LLP, the independent accountants of the Company, and with
your representatives and your counsel, I do not believe that (a) the
Registration Statement, on the date of the effectiveness of the Registration
Statement as provided in Rule 430B(f)(2) under the 1933 Act, contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, (b)
the Disclosure Package, as of the Applicable Time, contained an untrue statement
of a material fact or omitted to state a material fact necessary in order to
make the statements therein, in light of the circumstances under which they were
made, not misleading, or (c) the Prospectus, as of its date contained, or the
Prospectus, at the Closing Time contains, an untrue statement of a material fact
or omitted or omits to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading. The foregoing statement is subject to the
qualification that that I am not expressing any opinion or belief on the
financial statements, including the notes thereto, the financial schedules and
the other financial data included or incorporated by reference in the
Registration Statement, the Disclosure Package or the Prospectus or with respect
to the Statements of Eligibility on Form T-1 filed as Exhibits 25.02, 25.03 and
25.04 to the Registration Statement.
My
opinions in paragraphs 8 and 9 above are subject to the following limitations
and qualifications:
I express
no opinion as to:
|
(i)
|
waivers
of defenses or other rights or benefits bestowed by operation of
law;
|
|
(ii)
|
releases
or waivers of unmatured claims or rights;
|
|
(iii)
|
provisions
requiring amendments and waivers to be in writing;
|
|
(iv)
|
provisions
making notices effective even if not actually received; or
|
|
(v)
|
provisions
purporting to make a party’s determination
conclusive.
|
I am a
member of the Bar of the District of Columbia and the Bar of the State of
Maryland, and I express no opinion herein as to any law other than the laws of
the District of Columbia, the State of Maryland, the Commonwealth of Virginia,
the Commonwealth of Pennsylvania and the
federal
law of the United States. With respect to the laws of the
Commonwealth of Virginia and the Commonwealth of Pennsylvania, I have received
advice, satisfactory to me, from Virginia and Pennsylvania counsel admitted in
such jurisdictions whom I deem fully competent to furnish such
advice.
The
opinions contained herein are rendered solely for your benefit and may not be
relied on by any other person, except that I hereby authorize Dewey &
LeBoeuf LLP, in connection with rendering its opinion to you on the date hereof
relating to the offer and sale of the Securities, to rely on such opinions with
respect to matters governed by the laws of the District of Columbia, the State
of Maryland, the Commonwealth of Virginia and the Commonwealth of
Pennsylvania. The opinions expressed in this letter are limited to
the matters set forth herein, and no opinion should be inferred beyond those
opinions expressly stated. I assume no obligation to advise you of
any facts that come to my attention, or any changes in law, subsequent to the
date hereof.
|
|
Very
truly yours,
|
|
|
Kirk
J. Emge
|
Exhibit
B
Form
of Opinion of Covington & Burling LLP
to
be Delivered Pursuant to Section 5(b)
March 31,
2008
Citigroup
Global Markets Inc.
388
Greenwich Street
New York,
New York 10013
J.P.
Morgan Securities Inc.
270 Park
Avenue
New York,
New York 10017
as
Representatives of the Several Underwriters
Ladies
and Gentlemen:
We have
acted as special counsel to Potomac Electric Power Company, a District of
Columbia and Virginia corporation (the “Company”), in connection with the
issuance and sale by the Company of $250,000,000 in aggregate principal amount
of 6.50% Senior Notes due 2037 (the “Securities”) pursuant to the Purchase
Agreement, dated March 24, 2008, among the Company and Citigroup Global Markets
Inc. and J.P. Morgan Securities Inc., for themselves and as representatives of
the other underwriters named in Schedule A thereto (the “Purchase
Agreement”). The Securities will be issued as an additional amount of
the Company’s 6.50% Senior Notes due 2037 series of securities under an
indenture, dated as of November 17, 2003 (the “Original Indenture”), as amended
by a supplemental indenture dated March 31, 2008 (the “Indenture Supplement”),
between the Company and The Bank of New York, as trustee (the “Trustee”), with
the terms of the Securities set forth in an officer’s certificate, dated
November 16, 2007 (the “Original Officer’s Certificate”) and a supplemental
officer’s certificate, dated March 31, 2008 (the “Supplemental Officer’s
Certificate”). The Original Indenture, as amended by the Indenture
Supplement, and including the terms of the Securities as set forth in the
Original Officer’s Certificate and the Supplemental Officer’s Certificate, is
referred to herein as the “Indenture”.
In
connection with the issuance and sale by the Company of the Securities, the
Company will issue and deliver to the Trustee $250,000,000 in aggregate
principal amount of its First Mortgage Bonds, 6.50% Collateral Series 2 due 2037
(the “Collateral Bonds”). The Collateral Bonds will be issued under
the Mortgage and Deed of Trust, dated as of July 1, 1936, from the Company to
The Bank of New York (as successor trustee to The Riggs National Bank of
Washington, D.C.), as trustee (the “Mortgage Trustee”), as amended and
supplemented by various supplemental indentures, including the supplemental
indenture, dated as of March 24, 2008 (the “Mortgage Supplement”), establishing
the terms of the Collateral Bonds (such Mortgage and Deed of Trust, as so
amended and supplemented, the “Mortgage”). This opinion is being
delivered to you in accordance with Section 5(b) of the Purchase
Agreement. Unless otherwise defined herein, capitalized terms used
herein have the respective meanings provided in the Purchase
Agreement.
We have
reviewed:
(i) the
Purchase Agreement;
(ii) the
Registration Statement on Form S-3, Registration No. 333-145691-03, filed with
the Securities and Exchange Commission (the “Commission”) on August 24, 2007
(the “Registration Statement”), registering, inter alia, the Securities for sale
under the Securities Act of 1933, as amended (the “1933 Act”);
(iii) the
preliminary prospectus, consisting of the prospectus, dated August 24, 2007 (the
“Base Prospectus”), as supplemented by a prospectus supplement, dated March 24,
2008, with respect to the offer and sale of the Securities, filed with the
Commission on March 24, 2008, pursuant to Rule 424(b) under the 1933 Act (as so
supplemented, the “Pricing Prospectus”);
(iv) the
term sheet, dated March 24, 2008, with respect to the offer and sale of the
Securities, filed with the Commission on March 24, 2008, pursuant to Rule 433(d)
under the 1933 Act (the “Term Sheet” and, together with the Pricing Prospectus,
the “Disclosure Package”);
(v) the
final prospectus consisting of the Base Prospectus, as supplemented by a
prospectus supplement, dated March 24, 2008, with respect to the offer and sale
of the Securities, filed with the Commission on March 25, 2008, pursuant to Rule
424(b) under the 1933 Act (as so supplemented, the “Prospectus”);
(vi) the
Indenture;
(vii) the
Original Officer’s Certificate;
(viii) the
Supplemental Officer’s Certificate;
(ix) the
Indenture Supplement;
(x) the
Mortgage;
(xi) the
Mortgage Supplement;
(xii) a
facsimile copy of the Securities furnished by the Trustee; and
(xiii) a
facsimile copy of the Collateral Bonds furnished by the Mortgage
Trustee.
We also
have reviewed such corporate records, certificates and other documents, and such
questions of law, as we have deemed necessary or appropriate for the purposes of
rendering this opinion.
We have
assumed that all signatures are genuine, that all documents submitted to us as
originals are authentic and that all copies of documents submitted to us conform
to the originals. We have assumed further that (i) the Company is a
corporation duly organized, validly existing and in good standing under the laws
of the District of Columbia and the Commonwealth of Virginia and has all legal
right, power and authority and has obtained all authorizations and approvals of
governmental authorities necessary (A) to issue and sell the Securities, and (B)
to execute, deliver and perform its obligations under the Purchase Agreement,
the Indenture, the Mortgage, the Securities and the Collateral Bonds, (ii) the
Securities and the Collateral Bonds will constitute valid securities within the
meaning of Section 8.8A-110(a)(1) of the Virginia Uniform Commercial Code, and
(iii) the execution, delivery and performance by the Company of its obligations
under the Mortgage (other than the Mortgage Supplement) have been
duly
authorized
by the Company and the Mortgage (other than the Mortgage Supplement) has been
duly executed and delivered by the Company.
We have
made no investigation for the purpose of verifying the assumptions set forth
herein.
We have
relied as to certain matters on information obtained from public officials,
officers of the Company and other sources believed by us to be responsible, and
on information regarding the Company contained in the Registration Statement and
the Prospectus.
As used
in this opinion, all references to the “Registration Statement,” the “Pricing
Prospectus” and the “Prospectus” include all material incorporated by reference
therein, to the extent not modified or superseded by statements and other
information in the Registration Statement, Pricing Prospectus or Prospectus or
in later filed material so incorporated. In addition, the
qualification in paragraph 9 of this letter “to the best of our knowledge” means
the actual knowledge, but not constructive or imputed knowledge, of the
attorneys in our firm who have given substantive attention to the transaction
that is the subject of this opinion, without any representation or implication
that any inquiry has been made with respect to such statements.
Based
upon the foregoing, and subject to the qualifications set forth below, we are of
the opinion that, insofar as the laws of the State of New York, the District of
Columbia, the Virginia Stock Corporation Act (the “VSCA”) and, to the extent
expressly referred to herein, the Federal laws of the United States are
concerned:
1.
The
Purchase Agreement has been duly authorized, executed and delivered by the
Company.
2.
The
Original Officer’s Certificate and the Supplemental Officer’s Certificate have
been duly authorized, executed and delivered by the Company.
3.
The
Indenture has been duly authorized, executed and delivered by the Company and
constitutes a valid and binding obligation of the Company, enforceable against
the Company in accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and other laws of general
applicability relating to or affecting creditors’ rights and to general equity
principles. The Indenture has been qualified under the Trust
Indenture Act of 1939, as amended (the “1939 Act”).
4.
The
Securities are in the form contemplated by the Indenture and have been duly
authorized and executed by the Company, and when the Securities have been (A)
authenticated and delivered by the Trustee under the Indenture and (B) issued
and delivered by the Company against payment of the purchase price therefor as
provided in the Purchase Agreement, the Securities (i) will constitute valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and other laws of general applicability
relating to or affecting creditors’ rights and to general equity principles, and
(ii) will have been issued and delivered in accordance with the terms, and will
be entitled to the benefits, of the Indenture.
5.
The
Mortgage Supplement has been duly authorized, executed and delivered by the
Company.
6.
The
Mortgage constitutes a valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and other laws of
general applicability relating to or affecting creditors’ rights and to general
equity principles and except to the extent that the law of the jurisdictions in
which the mortgaged property is located may limit or deny certain remedial
provisions of the Mortgage.
7.
The
Collateral Bonds are in the form contemplated by the Mortgage, have been duly
authorized and executed by the Company, and when (A) the Collateral Bonds have
been (w) authenticated and delivered by the Mortgage Trustee under the Mortgage
and (x) issued and delivered by the Company to the Trustee as provided in the
Indenture and (B) the Securities have been (y) authenticated and delivered by
the Trustee under the Indenture and (z) issued and delivered by the Company
against payment of the purchase price therefor as provided in the Purchase
Agreement, the Collateral Bonds (i) will constitute valid and binding
obligations of the Company, enforceable against the Company in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other laws of general applicability relating to
or affecting creditors’ rights and to general equity principles, and (ii) will
have been issued and delivered in accordance with the terms, and will be
entitled to the benefits, of the Mortgage.
8.
The
descriptions of the Securities, the Indenture, the Collateral Bonds and the
Mortgage contained in the Prospectus are accurate in all material
respects.
9.
The
Registration Statement is effective under the 1933 Act; the Pricing Prospectus
and the Prospectus have been filed in the manner and within the time period
required by Rule 424(b), and the Term Sheet has been filed in the manner and
within the time period required by Rule 433(d), under the 1933 Act; and, to the
best of our knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued under the 1933 Act and no proceedings for
that purpose have been instituted or are pending or threatened by the
Commission.
10.
The
Registration Statement, on the date of the effectiveness of the Registration
Statement as provided in Rule 430B(f)(2) under the 1933 Act, and the Prospectus,
as of the date thereof (excluding the documents incorporated in the Registration
Statement or the Prospectus by reference and other than the financial
statements, including the notes thereto, the financial schedules and the other
financial and statistical data included therein, as to which we express no
opinion) complied as to form in all material respects with the requirements of
the 1933 Act and the rules and regulations of the Commission thereunder and with
the 1939 Act and the rules and regulations of the Commission
thereunder.
11.
The
Company is not, and upon the issuance and sale of the Securities as contemplated
by the Prospectus and the application of the net proceeds therefrom as described
in the Prospectus, will not be, an “investment company” or an entity
“controlled” by an “investment company,” as such terms are defined in the
Investment Company Act of 1940, as amended.
Our
opinions in paragraphs 3, 4, 6 and 7 above are subject to the following
limitations and qualifications:
(a) We
express no opinion as to:
|
(i)
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waivers
of defenses or other rights or benefits bestowed by operation of
law;
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(ii)
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releases
or waivers of unmatured claims or
rights;
|
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(iii)
|
provisions
requiring amendments and waivers to be in writing;
|
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(iv)
|
provisions
making notices effective even if not actually received; or
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(v)
|
provisions
purporting to make a party’s determination
conclusive.
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(b) We
express no opinion as to (i) the ownership of or title to any property, or as to
the adequacy of any description of property or (ii) any security interest or
lien or the perfection or priority thereof.
In
addition, as special counsel to the Company, we reviewed the Registration
Statement, the Disclosure Package and the Prospectus and participated in
discussions with your representatives and those of the Company, your counsel and
the Company’s accountants. On the basis of the information which was
reviewed by us in the course of the performance of the services referred to
above, considered in the light of our understanding of the applicable law and
the experience we have gained through our practice under the Federal securities
laws, we confirm to you that nothing which came to our attention in the course
of such review has caused us to believe that (a) the Registration Statement, on
the date of the effectiveness of the Registration Statement as provided in Rule
430B(f)(2) under the 1933 Act, contained any untrue statement of a material fact
or omitted to state any material fact required to be stated therein or necessary
to make the statements therein not misleading, (b) the Disclosure Package, as of
the Applicable Time (as specified in the Purchase Agreement), contained any
untrue statement of a material fact or omitted 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 (c) the Prospectus, as of its
date or as of the date hereof, contained or contains any untrue statement of a
material fact or omitted or omits to state any material fact necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading.
The
limitations inherent in the independent verification of factual matters and the
character of determinations involved in the registration process are such,
however, that we do not assume any responsibility for the accuracy, completeness
or fairness of the statements contained in the Registration Statement, the
Disclosure Package or the Prospectus, except as specified in paragraph 7
above. Also, we do not express any opinion or belief as to the
financial statements, including the notes thereto, the financial schedules and
the other financial and statistical data included in the Registration Statement,
the Disclosure Package or the Prospectus or with respect to the Statements of
Eligibility on Form T-1 filed as Exhibits 25.02, 25.03 and 25.04 to the
Registration Statement.
We are
members of the bars of the District of Columbia and the State of New
York. We do not express any opinion on any laws other than the laws
of the State of New York and the District of Columbia, the VSCA and, to the
extent expressly referred to herein, the Federal laws of the United
States.
This
letter is given to you as Representatives of the several Underwriters and is
solely for the benefit of the several Underwriters. It may not be
disclosed to or relied upon by any other person without our written consent,
except that we hereby authorize Dewey & LeBoeuf LLP, in connection with
rendering its opinion to you on the date hereof relating to the offer and sale
of the Securities, to rely on this opinion with respect to matters governed by
the laws of the District of Columbia and the VSCA.
Very
truly yours,
Prepared
by:
Leslie Zimberg Martin
701 Ninth
Street, NW - Suite 1220
Washington,
D.C. 20068
Phone
(202) 872-2585
Return
to: Leslie Zimberg Martin
Associate
General Counsel - PHI
701 Ninth
Street, NW - Suite 1220
Washington,
D.C. 20068
Phone
(202) 872-2585
POTOMAC
ELECTRIC POWER COMPANY
701 Ninth
Street, N.W., Washington, D.C.
TO
THE BANK
OF NEW YORK
101
Barclay Street, New York, NY
as Trustee
------------------------------------------
Supplemental
Indenture
Dated
as of March 24, 2008
------------------------------------------
Supplemental
to Mortgage and Deed of Trust
Dated
July 1, 1936
------------------------------------------
FIRST
MORTGAGE BONDS, 6.50% COLLATERAL SERIES 2 DUE NOVEMBER 15, 2037
POTOMAC
ELECTRIC POWER COMPANY
SUPPLEMENTAL
INDENTURE DATED AS OF MARCH 24, 2008
------------------------------------------
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PAGE
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Parties
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1
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Recitals
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1
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PART I
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Description
of Bonds of the Second 2037 Series
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Section
1.
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General
description of Bonds of the Second 2037 Series
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5
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Section
2.
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Form
of face of Bond of the Second 2037 Series
Form
of Trustee’s certificate
Text
appearing on reverse side of Bond of 2037 Series
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6
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Section
3.
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Denominations
of Bonds of the Second 2037 Series
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9
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Section
4.
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Execution
and form of temporary Bonds of the Second 2037 Series
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9
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PART II
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|
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Issue
of Bonds
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|
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Section
1.
|
Limitation
as to principal amount
|
10
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Section
2.
|
Issue
of Bonds of the Second 2037 Series
|
10
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PART III
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|
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Redemption
and Cancellation of Bonds
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Section
1.
|
Bonds
of the Second 2037 Series redeemable
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10
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Section
2.
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Event
of Default under Senior Note Indenture
|
11
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Section
3.
|
Occurrence
of Release Date
|
11
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|
Section
4.
|
Cancellation
|
11
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The Table of Contents is not part of the Supplemental
Indenture and should not be considered as such. It is included herein
only for purposes of convenient reference.
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PART IV
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Additional
Particular Covenants of the Company
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|
|
Section
1.
|
Company
not to withdraw moneys pursuant to Section 2 of Article VIII in excess of
an amount equal to principal amount of issued refundable
bonds
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12
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Section
2.
|
No
property additions made on or prior to December 31, 1946 to be used for
any purpose under the Indenture
|
12
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PART V
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|
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Amendment
of Indenture to Permit Qualification Under Trust Indenture Act of
1939
|
12
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PART VI
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|
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The
Trustee
|
12
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PART VII
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|
|
Miscellaneous
Provisions
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13
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|
|
|
Execution
of Supplemental Indenture in counterparts
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|
|
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Appointment
of attorneys-in-fact by parties
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Testimonium
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Execution
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Company’s
Acknowledgments
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Trustee’s
Acknowledgments
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SUPPLEMENTAL
INDENTURE, dated as of the twenty-fourth day of March, two thousand eight
(2008), made by and between Potomac Electric Power Company, a corporation
organized and existing under the laws of the District of Columbia and a domestic
corporation of the Commonwealth of Virginia (hereinafter sometimes called the
“Company”), party of the first part, and The Bank of New York, a New York
banking corporation organized and existing under the laws of the State of New
York (hereinafter sometimes called the “Trustee”), as trustee under the Mortgage
and Deed of Trust dated July 1, 1936, hereinafter mentioned, party of the
second part;
WHEREAS,
the Company has heretofore executed and delivered its Mortgage and Deed of
Trust, dated July 1, 1936 (hereinafter sometimes referred to as the
“Original Indenture”), to The Riggs National Bank of Washington, D.C., as
trustee, to secure an issue of First Mortgage Bonds of the Company, issuable in
series; and
WHEREAS,
the Trustee has succeeded The Riggs National Bank of Washington, D.C. as trustee
under the Original Indenture pursuant to Article XIII, Section 3 thereof;
and
WHEREAS,
pursuant to the terms and provisions of the Original Indenture, indentures
supplemental thereto dated as of July 1, 1936, December 1, 1939,
August 1, 1940, August 1, 1942, January 1, 1948, May 1,
1949, May 1, 1950, March 1, 1952, May 15, 1953, May 16,
1955, June 1, 1956, December 1, 1958, November 16, 1959,
December 1, 1960, February 15, 1963, May 15, 1964, April 1,
1966, May 1, 1967, February 15, 1968, March 15, 1969,
February 15, 1970, August 15, 1970, September 15, 1972,
April 1, 1973, January 2, 1974, August 15, 1974, August 15,
1974, June 15, 1977, July 1, 1979, June 16, 1981, June 17,
1981, December 1, 1981, August 1, 1982, October 1, 1982,
April 15, 1983, November 1, 1985, March 1, 1986, November 1,
1986, March 1, 1987, September 16, 1987, May 1, 1989,
August 1, 1989, April 5, 1990, May 21, 1991, May 7, 1992,
September 1, 1992, November 1, 1992, March 1, 1993, March 2,
1993, July 1, 1993, August 20, 1993, September 29, 1993,
September 30, 1993, October 1, 1993, February 10, 1994,
February 11, 1994, March 10, 1995, September 6, 1995,
September 7, 1995, October 2, 1997, March 17, 1999, November 17,
2003, March 16, 2004, May 24, 2005, April 1, 2006 and November 13, 2007
have been heretofore entered into between the Company and the Trustee to
provide, respectively, for the creation of the first through the sixty-ninth
series of Bonds thereunder and, in the case of the supplemental indentures dated
January 1, 1948, March 1, 1952, May 15, 1953, May 16, 1955,
June 1, 1956, September 15, 1972, July 1, 1979, June 17,
1981, November 1, 1985, September 16, 1987, May 1, 1989,
May 21, 1991, May 7, 1992, July 1, 1993, October 2, 1997 and
one of the supplemental indentures dated August 15, 1974, to convey
additional property; and
WHEREAS,
$20,000,000 principal amount of Bonds of the 3-1/4% Series due 1966 (the first
series), $5,000,000 principal amount of Bonds of the 3-1/4% Series due 1974 (the
second series), $10,000,000 principal amount of Bonds of the 3-1/4% Series due
1975 (the third series), $5,000,000 principal amount of Bonds of the 3-1/4%
Series due 1977 (the fourth series), $15,000,000 principal amount of Bonds of
the 3% Series due 1983 (the fifth series), $10,000,000 principal amount of Bonds
of the 2-7/8% Series due 1984 (the sixth series), $30,000,000 principal amount
of Bonds of the 2-3/4% Series due 1985 (the seventh series), $15,000,000
principal amount of Bonds of the 3-1/4% Series due 1987 (the eighth series),
$10,000,000 principal amount of Bonds of the 3-7/8% Series due 1988 (the ninth
series), $10,000,000
principal
amount of Bonds of the 3-3/8% Series due 1990 (the tenth series), $10,000,000
principal amount of Bonds of the 3-5/8% Series due 1991 (the eleventh series),
$25,000,000 principal amount of Bonds of the 4-5/8% Series due 1993 (the twelfth
series), $15,000,000 principal amount of Bonds of the 5-1/4% Series due 1994
(the thirteenth series), $40,000,000 principal amount of Bonds of the 5% Series
due 1995 (the fourteenth series), $50,000,000 principal amount of Bonds of the
4-3/8% Series due 1998 (the fifteenth series), $45,000,000 principal amount of
Bonds of the 4-1/2% Series due 1999 (the sixteenth series), $15,000,000
principal amount of Bonds of the 5-1/8% Series due 2001 (the seventeenth
series), $35,000,000 principal amount of Bonds of the 5-7/8% Series due 2002
(the eighteenth series), $40,000,000 principal amount of Bonds of the 6-5/8%
Series due 2003 (the nineteenth series),$45,000,000 principal amount of Bonds of
the 7-3/4% Series due 2004 (the twentieth series), $35,000,000 principal amount
of Bonds of the 8.85% Series due 2005 (the twenty-first Series), $70,000,000
principal amount of Bonds of the 9-1/2% Series due August 15, 2005 (the
twenty-second series), $50,000,000 principal amount of Bonds of the 7-3/4%
Series due 2007 (the twenty-third series), $25,000,000 principal amount of Bonds
of the 5-5/8% Series due 1997 (the twenty-fourth series), $100,000,000 principal
amount of Bonds of the 8-3/8% Series due 2009 (the twenty-fifth series),
$50,000,000 principal amount of Bonds of the 10-1/4% Series due 1981 (the
twenty-sixth series), $50,000,000 principal amount of Bonds of the 10-3/4%
Series due 2004 (the twenty-seventh series), $38,300,000 principal amount of
Bonds of the 6-1/8% Series due 2007 (the twenty-eighth series), $15,000,000
principal amount of Bonds of the 6-1/2% Series due 2004 (the twenty-ninth
series), $20,000,000 principal amount of Bonds of the 6-1/2% Series due 2007
(the thirtieth series), $7,500,000 principal amount of Bonds of the 6-5/8%
Series due 2009 (the thirty-first series), $30,000,000 principal amount of Bonds
of the Floating Rate Series due 2010 (the thirty-second series), $50,000,000
principal amount of Bonds of the 14-1/2% Series due 1991 (the thirty-third
series), $50,000,000 principal amount of Bonds of the Adjustable Rate Series due
2001 (the thirty-fourth series),$60,000,000 principal amount of Bonds of the
14-1/4% Series due 1992 (the thirty-fifth series), $50,000,000 principal amount
of Bonds of the 11-7/8% Series due 1989 (the thirty-sixth series), $37,000,000
principal amount of Bonds of the 8-3/4% Series due 2010 (the thirty-seventh
series), $75,000,000 principal amount of Bonds of the 11-1/4% Series due 2015
(the thirty-eighth series), $75,000,000 principal amount of Bonds of the 9-1/4%
Series due 2016 (the thirty-ninth series), $75,000,000 principal amount of Bonds
of the 8-3/4% Series due 2016 (the fortieth series), $75,000,000 principal
amount of Bonds of the 8-1/4% Series due 2017 (the forty-first series),
$75,000,000 principal amount of Bonds of the 9% Series due 1990 (the
forty-second series), $75,000,000 principal amount of Bonds of the 9-3/4% Series
due 2019 (the forty-third series), $75,000,000 principal amount of Bonds of the
8-5/8% Series due 2019 (the forty-fourth series), $100,000,000 principal amount
of Bonds of the 9% Series due 2000 (the forty-fifth series), $100,000,000
principal amount of Bonds of the 9% Series due 2021 (the forty-sixth series),
$75,000,000 principal amount of Bonds of the 8-1/2% Series due 2027 (the
forty-seventh series); $78,000,000 principal amount of Bonds of the 6-1/2%
Series due 2008 (the fiftieth series); $40,000,000 principal amount of Bonds of
the 7-1/2% Series due 2028 (the fifty-first series); $100,000,000 principal
amount of Bonds of the 7-1/4% Series due 2023 (the fifty-second series);
$100,000,000 principal amount of Bonds of the 6-7/8% Series due 2023 (the
fifty-third series); $50,000,000 principal amount of Bonds of the 5-5/8% Series
due 2003 (the fifty-fourth series); $75,000,000 principal amount of Bonds of the
6-7/8% Series due 2024 (the fifty-sixth series); $100,000,000 principal amount
of Bonds of the 6-1/2% series due 2005 (the sixtieth series); $75,000,000
principal amount of Bonds of the 7-3/8% Series due 2025 (the sixty-
first
series); $175,000,000 principal amount of Bonds of the 6-1/4% Series due 2007
(the sixty-second series); and $270,000,000 principal amount of Bonds of the 6%
Series due 2004 (the sixty-third series) have been heretofore redeemed and
retired and there are now issued and outstanding under the Original Indenture
and under the supplemental indentures referred to above: $30,000,000 principal
amount of Bonds of the 6% Series due 2022 (the forty-eighth series); $37,000,000
principal amount of Bonds of the 6-3/8% Series due 2023 (the forty-ninth
series); $50,000,000 principal amount of Bonds of the 5-7/8% Series due 2008
(the fifty-fifth series); $42,500,000 principal amount of Bonds of the 5-3/8%
Series due 2024 (the fifty-seventh series); $38,300,000 principal amount of
Bonds of the 5-3/8% Series due 2024 (the fifty-eighth series); $16,000,000
principal amount of Bonds of the 5-3/4% Series due 2010 (the fifty-ninth
series); $200,000,000 principal amount of Bonds of the 4.95% Series due 2013
(the sixty-fourth series); $175,000,000 principal amount of Bonds of the 4.65%
Series due 2014 (the sixty-fifth series); $100,000,000 principal amount of Bonds
of the 5.75% Series due 2034 (the sixty-sixth series); $175,000,000 principal
amount of Bonds of the 5.40% Series due 2035 (the sixty-seventh series);
$109,500,000, principal amount of Bonds of the Medco Collateral Series due 2022
(the sixty-eighth series); and $250,000,000 principal amount of Bonds of the
6.50% Series due 2037 (the sixty-ninth series); and
WHEREAS,
for the purpose of conforming the Original Indenture to the standards prescribed
by the Trust Indenture Act of 1939 or otherwise modifying certain of the
provisions of the Original Indenture, indentures supplemental thereto dated
December 10, 1939, August 10, 1942, October 15, 1942,
April 1, 1966, June 16, 1981, June 17, 1981, December 1,
1981, August 1, 1982, October 1, 1982, April 15, 1983,
November 1, 1985, March 1, 1986, November 1, 1986, March 1,
1987, September 16, 1987, May 1, 1989, August 1, 1989,
April 5, 1990, May 21, 1991, May 7, 1992, September 1, 1992,
November 1, 1992, March 1, 1993, March 2, 1993, July 1,
1993, August 20, 1993, September 29, 1993, September 30, 1993,
October 1, 1993, February 10, 1994, February 11, 1994,
March 10, 1995, September 6, 1995, September 7, 1995,
October 2, 1997, March 17, 1999, November 17, 2003, March 16, 2004,
May 24, 2005, April 1, 2006 and November 13, 2007 have been heretofore entered
into between the Company and the Trustee, and for the purpose of conveying
additional property, indentures supplemental thereto dated July 15, 1942,
October 15, 1947, December 31, 1948, December 31, 1949,
February 15, 1951, February 16, 1953, March 15, 1954,
March 15, 1955, March 15, 1956, April 1, 1957, May 1, 1958,
May 1, 1959, May 2, 1960, April 3, 1961, May 1, 1962,
May 1, 1963, April 23, 1964, May 3, 1965, June 1, 1966,
April 28, 1967, July 3, 1967, May 1, 1968, June 16, 1969,
May 15, 1970, September 1, 1971, June 17, 1981, November 1,
1985, September 16, 1987, May 1, 1989, May 21, 1991, May 7,
1992, July 1, 1993 and October 2, 1997 have been heretofore entered
into between the Company and the Trustee, and for the purpose of better securing
and protecting the Bonds then or thereafter issued and confirming the lien of
the Original Indenture, an indenture dated October 15, 1942 supplemental
thereto has been heretofore entered into between the Company and the Trustee;
the Original Indenture as heretofore amended and supplemented being hereinafter
referred to as the “Original Indenture as amended”; and
WHEREAS,
the Company is entitled to have authenticated and delivered additional Bonds in
substitution for refundable Bonds, upon compliance with the provisions of
Section 7 of Article III of the Original Indenture as amended; and
WHEREAS,
the Company has entered into an Indenture, dated as of November 17, 2003
(as amended, supplemented or modified to the date hereof, the “Senior Note
Indenture”), with The Bank of New York, as trustee (the “Senior Note Trustee”),
providing for the issuance thereunder of senior debt securities (the “Senior
Notes”); and
WHEREAS,
the Company has determined to issue under and pursuant to the Senior Note
Indenture an additional amount of the Company’s 6.50% Senior Notes due November
15, 2037 in the principal amount of $250,000,000 (hereinafter called “Senior
Notes of 2037 Series); and
WHEREAS,
pursuant to Article Thirteen of the Senior Note Indenture, the Company wishes to
issue to the Senior Note Trustee, for the benefit of the holders of the Senior
Notes of 2037 Series, a new series of Bonds under the Original Indenture as
amended (i) that have an aggregate principal amount equal to the principal
amount of the Senior Notes of 2037 Series, (ii) that have a stated maturity
date that is the same as the stated maturity of the Senior Notes of 2037 Series,
(iii) that bear interest at a rate equal to the interest rate borne by the
Senior Notes of 2037 Series, (iv) that have interest payment dates that are
the same as the interest payment dates of the Senior Notes of 2037 Series,
(v) that contain the same redemption provisions as the Senior Notes of 2037
Series and (vi) that in all other material respects conform as nearly as is
practicable to the terms of the Senior Notes of 2037 Series; and
WHEREAS,
for such purposes the Company has determined to issue a
seventieth series of Bonds under the Original Indenture as amended in
the principal amount of $250,000,000, to be known as First Mortgage Bonds, 6.50%
Collateral Series 2 due 2037 (hereinafter called “Bonds of the Second 2037
Series”); and
WHEREAS,
the Bonds of the Second 2037 Series and the $250,000,000 principal amount of
First Mortgage Bonds, 6.50% Collateral Series due 2037 delivered by the Company
to the Senior Note Trustee on November 16, 2007, shall collectively secure the
Senior Notes of 2037 Series; and
WHEREAS,
the Company intends to use the net proceeds of the Senior Notes of 2037 Series
to provide funding to (a) repay short term debt of the Company, $78,000,000 of
which was issued to repay at maturity $78,000,000 in principal amount of Bonds
of the 6-1/2% Series due 2008, (b) to repay $50,000,000 in principal amount of
Bonds of the 5-7/8% Series due 2008 at maturity, and (c) otherwise for general
corporate purposes; and
WHEREAS,
the Company, in the exercise of the powers and authority conferred upon and
reserved to it under the provisions of the Original Indenture as amended and
pursuant to appropriate resolutions of its Board of Directors, has duly resolved
and determined to make, execute and deliver to the Trustee a supplemental
indenture in the form hereof for the purposes herein provided; and
WHEREAS,
all conditions and requirements necessary to make this Supplemental Indenture a
valid, binding and legal instrument have been done, performed and fulfilled, and
the execution and delivery hereof have been in all respects duly
authorized;
NOW,
THEREFORE, THIS INDENTURE WITNESSETH:
That
Potomac Electric Power Company, in consideration of the premises and of One
Dollar to it duly paid by the Trustee at or before the ensealing and delivery of
these presents, and for other valuable considerations, the receipt whereof is
hereby acknowledged, hereby covenants, declares and agrees with the Trustee and
its successors in the trust under the Original Indenture as amended for the
benefit of those who hold the Bonds and coupons, or any of them, issued or to be
issued hereunder or under the Original Indenture as amended, as
follows:
PART
I.
DESCRIPTION
OF BONDS OF THE SECOND 2037 SERIES.
SECTION
1.
The Bonds
of the Second 2037 Series shall, subject to the provisions of Section 1 of
Article II of the Original Indenture as amended, be designated as “First
Mortgage Bonds, 6.50% Collateral Series 2 due November 15, 2037” of the
Company. The Bonds of the Second 2037 Series shall be executed,
authenticated and delivered in accordance with the provisions of, and shall in
all respects be subject to, all of the terms, conditions and covenants of the
Original Indenture as amended, except in so far as the terms and provisions of
the Original Indenture as amended are amended or modified by this Supplemental
Indenture.
The Bonds of the Second 2037 Series shall mature on
November 15, 2037, and shall bear interest at such rate as is payable from time
to time on the Senior Notes of 2037 Series, payable at such times as interest is
payable on such Senior Notes of 2037 Series, until the principal thereof is paid
or made available for payment. Interest on the Bonds of the Second 2037 Series
will accrue during the same periods as interest accrues from time to time on the
Senior Notes of 2037 Series. The Bonds of the Second 2037 Series shall be
payable as to principal and interest in lawful money of the United States of
America, and shall be payable (as well the interest as the principal thereof) at
the agency of the Company in the Borough of Manhattan, The City of New
York.
Each Bond of the Second 2037 Series is to be issued to
and registered in the name of the Senior Note Trustee, to be owned and held by
the Senior Note Trustee under the terms of the Senior Note Indenture for the
benefit of the holders of the Senior Notes of 2037 Series in order to secure the
Company’s obligations under the Senior Notes of 2037 Series. The Bonds of the
Second 2037 Series shall not be assignable or transferable except as permitted
or required by Section 1307 of the Senior Note Indenture.
Upon any payment or deemed payment of the principal of,
premium, if any, and interest on all or any portion of the Senior Notes of
2037 Series (and to the extent of such payment or deemed payment),
whether at maturity or prior to maturity by redemption or otherwise, or upon
provision for the payment thereof having been made in accordance with Section
702 of the Senior Note Indenture, the obligation of the Company to make the
corresponding payment of principal, premium, if any, or interest on the Bonds of
the Second 2037 Series shall be deemed to be satisfied and
discharged. The Trustee may at any time and all times conclusively
presume that the obligation of the Company to make payments with respect to the
principal of, premium, if any, and interest on the Bonds of the Second 2037
Series, so far as such payments at the time have become due, has been fully
satisfied and discharged pursuant to the foregoing sentence unless and until
the
Trustee
shall have received a written notice from the Senior Note Trustee signed by one
of its officers (i) stating that timely payment of principal of or premium or
interest on, the Senior Notes of 2037 Series has not been so made or deemed made
and (ii) providing the details of such nonpayment.
SECTION
2.
The Bonds
of the Second 2037 Series, and the Trustee’s certificate to be endorsed on the
Bonds of the Second 2037 Series, shall be substantially in the following forms,
respectively:
[FORM OF
FACE OF BOND OF SECOND 2037 SERIES]
THIS BOND
IS NOT TRANSFERABLE EXCEPT TO A SUCCESSOR TRUSTEE UNDER THE INDENTURE, DATED
NOVEMBER 17, 2003, AS AMENDED AND SUPPLEMENTED, BETWEEN POTOMAC ELECTRIC POWER
COMPANY AND THE BANK OF NEW YORK, AS TRUSTEE
POTOMAC
ELECTRIC POWER COMPANY
(A
District of Columbia and Virginia corporation)
First
Mortgage Bond, 6.50% Collateral Series 2 Due November 15, 2037
No.
POTOMAC ELECTRIC POWER COMPANY, a corporation organized
and existing under the laws of the District of Columbia and a domestic
corporation of the Commonwealth of Virginia (hereinafter called the “Company”,
which term shall include any successor corporation as defined in the Amended
Indenture hereinafter referred to), for value received, hereby promises to pay
to The Bank of New York, as trustee, or registered assigns, the sum of
dollars, on the fifteenth day of November 2037, in lawful money of the United
States of America, and to pay interest on said principal sum at such rate as is
payable from time to time on the corresponding Senior Notes of 2037 Series (as
hereinafter defined), payable at such times as interest is payable on such
Senior Notes of 2037 Series, in like money, until the Company’s obligation with
respect to the payment of such principal shall have been
discharged. Interest on this Bond will accrue during the same periods
as interest accrues from time to time on the Senior Notes of 2037 Series. Both
principal of, and interest on, this Bond are payable at the agency of the
Company in the Borough of Manhattan, The City of New York.
Under an
Indenture dated as of November 17, 2003 (as amended, supplemented or modified to
the date hereof, hereinafter sometimes referred to as the “Senior Note
Indenture”), between Potomac Electric Power Company and The Bank of New York, as
trustee (hereinafter sometimes called the “Senior Note Trustee”), the Company
will issue, concurrently with the issuance of this Bond, an additional amount of
the Company’s 6.50% Senior Notes due 2037 series of securities under the Senior
Note Indenture (the “Senior Notes of 2037 Series”). Pursuant to
Article Thirteen of the Senior Note Indenture, this Bond is issued to the Senior
Note Trustee to secure any and all obligations of the Company under the Senior
Notes of 2037 Series.
Payment
or deemed payment of principal of, or premium, if any, or interest on, the
Senior Notes of 2037 Series shall constitute payments on this Bond.
Reference
is made to the further provisions of this Bond set forth on the reverse hereof,
and such further provisions shall for all purposes have the same effect as
though fully set forth at this place.
This Bond
shall not be entitled to any benefit under the Amended Indenture (as defined
herein) or any indenture supplemental thereto, or become valid or obligatory for
any purpose, until The Bank of New York, the Trustee under the Amended
Indenture, or a successor trustee thereto under the Amended Indenture, shall
have signed the form of certificate endorsed hereon.
IN
WITNESS WHEREOF, Potomac Electric Power Company has caused this Bond to be
signed in its name by the signature (or a facsimile thereof) of its President or
a Vice President, and its corporate seal (or a facsimile thereof) to be hereto
affixed and attested by the facsimile signature of its Secretary or an Assistant
Secretary.
|
|
POTOMAC ELECTRIC POWER COMPANY
|
|
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By
_____________________________________
Vice
President
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|
Attest:
|
|
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____________________________
Secretary
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|
[FORM OF
TRUSTEE’S CERTIFICATE]
This Bond
is one of the Bonds, of the series designated therein, described in the
within-mentioned Amended Indenture and the Supplemental Indenture dated as of
March 24, 2008.
|
Dated:
|
The Bank of New York,
as
Trustee.
|
|
|
By
_____________________________________
Authorized
Signatory
|
[TEXT
APPEARING ON REVERSE SIDE OF BOND OF SECOND 2037 SERIES]
This Bond
is one of a duly authorized issue of Bonds of the Company (hereinafter called
the “Bonds”) in unlimited aggregate principal amount, of the series hereinafter
specified, all issued and to be issued under and equally secured (except in so
far as any purchase or sinking fund or analogous provisions for any particular
series of Bonds, established by any indenture supplemental to the Amended
Indenture hereinafter mentioned, may afford additional security for such Bonds)
by a mortgage and deed of trust, dated July 1, 1936, executed by the
Company to The Bank of New York as successor to The Riggs National Bank of
Washington, D.C. (herein
called
the “Trustee”), as trustee, as amended by indentures supplemental thereto dated
December 10, 1939, August 10, 1942, October 15, 1942,
April 1, 1966, June 16, 1981, June 17, 1981, December 1,
1981, August 1, 1982, October 1, 1982, April 15, 1983,
November 1, 1985, March 1, 1986, November 1, 1986, March 1,
1987, September 16, 1987, May 1, 1989, August 1, 1989,
April 5, 1990, May 21, 1991, May 7, 1992, September 1, 1992,
November 1, 1992, March 1, 1993, March 2, 1993, July 1,
1993, August 20, 1993, September 29, 1993, September 30, 1993,
October 1, 1993, February 10, 1994, February 11, 1994,
March 10, 1995, September 6, 1995, September 7, 1995,
October 2, 1997, March 17, 1999, November 17, 2003, March 16, 2004, May 24,
2005, April 1, 2006 and November 13, 2007 (said mortgage and deed of trust, as
so amended, being herein called the “Amended Indenture”) and all indentures
supplemental thereto, to which Amended Indenture and supplemental indentures
reference is hereby made for a description of the properties mortgaged and
pledged, the nature and extent of the security, the rights of the owners of the
Bonds and of the Trustee in respect thereto, and the terms and conditions upon
which the Bonds are, and are to be, secured. To the extent permitted
by, and as provided in, the Amended Indenture, modifications or alterations of
the Amended Indenture, or of any indenture supplemental thereto, and of the
rights and obligations of the Company and of the holders of the Bonds may be
made with the consent of the Company by an affirmative vote of not less than 60%
in amount of the Bonds entitled to vote then outstanding, at a meeting of
Bondholders called and held as provided in the Amended Indenture, and by an
affirmative vote of not less than 60% in amount of the Bonds of any series
entitled to vote then outstanding and affected by such modification or
alteration, in case one or more but less than all of the series of Bonds then
outstanding under the Amended Indenture are so affected; provided, however, that
no such modification or alteration shall be made which will affect the terms of
payment of the principal of, or interest on, this Bond, which are unconditional,
or which reduces the percentage of Bonds the affirmative vote of which is
required for the making of such modifications or alterations.
This Bond
is one of a series designated as the “First Mortgage Bonds, 6.50% Collateral
Series 2 due November 15, 2037 (herein called the “Bonds of the Second 2037
Series”) of the Company, issued under and secured by the Amended Indenture and
all indentures supplemental thereto and described in the supplemental indenture
(herein called the “New Supplemental Indenture”), dated as of March 24, 2008,
between the Company and the Trustee, supplemental to the Amended
Indenture.
Upon any
payment or deemed payment of the principal of, premium, if any, and interest on
all or any portion of the Senior Notes of 2037 Series (and to the extent of such
payment or deemed payment), whether at maturity or prior to maturity by
redemption or otherwise, or upon provision for the payment thereof having been
made in accordance with Section 702 of the Senior Note Indenture, the
obligation of the Company to make the corresponding payment of principal,
premium, if any, or interest on the Bonds of the Second 2037 Series shall be
deemed to be satisfied and discharged. The Trustee may at any time
and all times conclusively presume that the obligation of the Company to make
payments with respect to the principal of, premium, if any, and interest on the
Bonds of the Second 2037 Series, so far as such payments at the time have become
due, has been fully satisfied and discharged pursuant to the foregoing sentence
unless and until the Trustee shall have received a written notice from the
Senior Note Trustee signed by one of its officers stating (i) that timely
payment of principal of,
or
premium or interest on, the Senior Notes of 2037 Series has not been so made or
deemed made and (ii) providing the details of such nonpayment.
This Bond
is redeemable on such dates, in such principal amounts and at such
redemption prices as the Senior Notes of 2037 Series are redeemable, and this
Bond shall be redeemed upon written demand of the Senior Note Trustee
following the occurrence of an Event of Default under the Senior Note Indenture
and the acceleration of the Senior Notes of 2037 Series as provided in Section
802(a) or 802(b) of the Senior Note Indenture, all as provided in this New
Supplemental Indenture.
This Bond
shall not be assignable or transferable except as permitted or required by
Section 1307 of the Senior Note Indenture.
As
provided in Section 1308 of the Senior Note Indenture, from and after the
Release Date (as defined in the Senior Note Indenture), the obligation of the
Company with respect to this Bond shall be deemed to be satisfied and
discharged, this Bond shall cease to secure in any manner the Senior Notes of
2037 Series or any other senior notes outstanding under the Senior Note
Indenture and, pursuant to Section 1308 of the Senior Note Indenture, the
Senior Note Trustee shall forthwith deliver this Bond to the Company or the
Trustee (as directed by Company Order (as defined in the Senior Note
Indenture)).
In case
an event of default, as defined in the Amended Indenture, shall occur, the
principal of all the Bonds at any such time outstanding under the Amended
Indenture may be declared or may become due and payable, upon the conditions and
in the manner and with the effect provided in the Amended
Indenture. The Amended Indenture provides that such declaration may
in certain events be waived by the holders of a majority in principal amount of
the Bonds entitled to vote then outstanding.
No
recourse shall be had for the payment of the principal of, or the interest on,
this Bond, or for any claim based hereon or otherwise in respect hereof or of
the Amended Indenture or any indenture supplemental thereto, against any
incorporator, or against any stockholder, director or officer, past, present or
future, of the Company or of any predecessor or successor corporation, either
directly or through the Company or any such predecessor or successor
corporation, whether for amounts unpaid on stock subscriptions or by virtue of
any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability, whether at common law,
in equity, by any constitution, statute or otherwise, of incorporators,
stockholders, directors or officers being released by every owner hereof by the
acceptance of this Bond and as part of the consideration for the issue hereof,
and being likewise released by the terms of the Amended Indenture.
[END OF
FORM]
SECTION
3.
The Bonds
of the Second 2037 Series shall be registered Bonds without coupons in
denominations of any multiple of $1,000, numbered consecutively upwards from
R-1.
SECTION
4.
Until
Bonds of the Second 2037 Series in definitive form are ready for delivery, the
Company may execute, and upon its request in writing the Trustee
shall
authenticate
and deliver, in lieu thereof, Bonds for such series in temporary form, as
provided in Section 9 of Article II of the Original Indenture as
amended.
PART
II.
Issue of
Bonds.
SECTION
1.
Except
for Bonds of the Second 2037 Series issued pursuant to Section 13 of
Article II of the Original Indenture as amended, the principal amount of
Bonds of the Second 2037 Series which may be authenticated and delivered
hereunder is limited to $250,000,000 aggregate principal
amount.
SECTION
2.
Bonds of
the Second 2037 Series, in the aggregate principal amount permitted in
Section 1 of this Part II, may at any time subsequent to the execution
hereof be executed by the Company and delivered to the Trustee and shall be
authenticated by the Trustee and delivered (either before or after the recording
hereof) to or upon the order of the Company evidenced by a writing or writings,
signed by its President or one of its Vice Presidents and its Treasurer or one
of its Assistant Treasurers, at such time or times as may be requested by the
Company subsequent to the receipt by the Trustee of:
(1)
the
certified resolution and the officers’ certificate required by Section 3(a) and
Section 3(b) of Article III of the Original Indenture as
amended;
(2)
the
opinion of counsel required by Section 3(c) of Article III of the Original
Indenture as amended;
(3)
cash, if
any, in the amount required to be deposited by Section 3(d) of Article III
of the Original Indenture as amended, which shall be held and applied by the
Trustee as provided in said Section 3(d);
(4)
the
officer’s certificate required by Section 7(a) of Article III of the Original
Indenture as amended; and
(5)
the
certificates and opinions required by Article XVIII of the Original Indenture as
amended.
PART
III.
Redemption
and Cancellation of Bonds.
SECTION
1.
Bonds of
the Second 2037 Series shall not be redeemable except on the respective dates,
in the respective principal amounts and for the respective redemption prices
that correspond to the redemption dates for, the principal amounts to be
redeemed of, and the redemption prices for, the Senior Notes of 2037
Series. Otherwise, the Bonds of the Second 2037 Series shall not be
redeemable except as set forth in Section 2 herein.
In the event the Company redeems or delivers to the
Senior Note Trustee for cancellation any Senior Notes of 2037 Series prior to
maturity in accordance with the provisions of the Senior Note Indenture, Bonds
of the Second 2037 Series in principal amounts corresponding to the Senior Notes
of 2037 Series so redeemed or cancelled shall be deemed to have been redeemed,
and the Senior Note Trustee is required to deliver to the Company Bonds of the
Second 2037 Series so redeemed, all as provided in Section 1308 of the Senior
Note Indenture. The Company agrees to give the Trustee written notice of any
such redemption of the Senior Notes of 2037 Series on or before the date fixed
for any such redemption. The Senior Note Trustee, as holder of all
Bonds of the Second 2037 Series then outstanding, shall be deemed to have waived
notice of any such redemption of such Bonds of the Second 2037
Series.
SECTION
2.
Upon the
occurrence of an Event of Default under the Senior Note Indenture and the
acceleration of the Senior Notes of 2037 Series pursuant to Section 802(a) or
802(b) thereof, the Company shall redeem the Bonds of the Second 2037 Series in
whole upon receipt by the Company of a written demand (hereinafter called a
“Redemption Demand”) from the Senior Note Trustee stating that there has
occurred under the Senior Note Indenture both an Event of Default and a
declaration of acceleration of payment of principal, accrued interest and
premium, if any, on the Senior Notes of 2037 Series pursuant to Section 802(a)
or 802(b) thereof, specifying the last date to which interest on such notes has
been paid or deemed paid (such date being hereinafter referred to as the
“Initial Interest Accrual Date”) and demanding redemption of Bonds of the Second
2037 Series. Each 2037 Series Redemption Demand also shall constitute
a waiver by the Senior Note Trustee, as holder of all Bonds of the Second 2037
Series then outstanding, of notice of redemption of the Bonds of the Second 2037
Series. The Company waives any right it may have to prior
notice of such redemption under the Original Indenture as
amended. Upon presentation of the Bonds of the Second 2037 Series by
the Senior Note Trustee to the Trustee, the Bonds of the Second 2037 Series
shall be redeemed at a redemption price equal to the principal amount thereof
plus accrued interest thereon from the Initial Interest Accrual Date to the date
of the Redemption Demand; provided, however, that in the event of a rescission
of acceleration of Senior Notes of 2037 Series pursuant to Section 802(e) of the
Senior Note Indenture, then any Redemption Demand shall thereby be deemed to be
rescinded by the Senior Note Trustee; but no such rescission or annulment shall
extend to or affect any subsequent default or impair any right consequent
thereon.
SECTION
3.
As
provided in Section 1303 of the Senior Note Indenture, from and after the
Release Date (as defined in the Senior Note Indenture), the obligations of the
Company with respect to the Bonds of the Second 2037 Series shall be deemed to
be satisfied and discharged, the Bonds of the Second 2037 Series shall cease to
secure in any manner the Senior Notes of 2037 Series or any other senior notes
outstanding under the Senior Note Indenture and, pursuant to Section 1308 of the
Senior Note Indenture, the Senior Note Trustee shall forthwith deliver the Bonds
of the Second 2037 Series to the Company or the Trustee (as directed by Company
Order (as defined in the Senior Note Indenture)).
SECTION
4.
All Bonds
delivered to or redeemed by the Trustee pursuant to the provisions of this Part
III shall forthwith be cancelled.
PART
IV.
Additional
Particular Covenants of the Company.
The
Company hereby covenants, warrants and agrees that so long as any Bonds of the
Second 2037 Series are outstanding:
SECTION
1.
The
Company will not withdraw, pursuant to the provisions of Section 2 of
Article VIII of the Original Indenture as amended, any moneys held by the
Trustee as part of the trust estate in excess of an amount equal to the
aggregate principal amount of such of the refundable Bonds as were theretofore
issued by the Company; and that upon any such withdrawal by the Company
refundable Bonds equal in aggregate principal amount to the amount so withdrawn
shall be deemed to have been made the basis of such
withdrawal.
SECTION
2.
Property
additions purchased, constructed or otherwise acquired on or before
December 31, 1946 shall not be made the basis for the authentication and
delivery of Bonds, or the withdrawal of cash, or the reduction of the amount of
cash required to be paid to the Trustee under any provision of the
Indenture.
PART
V.
Amendment
of Indenture to Permit Qualification
Under
Trust Indenture Act of 1939.
The
Company and the Trustee, from time to time and at any time, without any vote or
consent of the holders of the Bonds of the Second 2037 Series, may enter into
such indentures supplemental to the Original Indenture as may or shall by them
be deemed necessary or desirable to add to or modify or amend any of the
provisions of the Original Indenture so as to permit the qualification of the
Original Indenture under the Trust Indenture Act of 1939.
Except to
the extent specifically provided herein, no provision of this Supplemental
Indenture is intended to modify, and the parties hereto do hereby adopt and
confirm, the provisions of Section 318(c) of the Trust Indenture Act of 1939
which amend and supersede provisions of the Original Indenture, as supplemented,
in effect prior to November 15, 1990.
PART
VI.
The
Trustee.
The
Trustee hereby accepts the trusts hereby declared and provided and agrees to
perform the same upon the terms and conditions in the Original Indenture as
amended set forth and upon the following terms and conditions:
The
Trustee shall not be responsible in any manner whatsoever for or in respect of
the validity or sufficiency of this Supplemental Indenture or the due execution
hereof by the Company or for or in respect of the recitals contained herein, all
of which recitals are made by the Company solely. In general, each
and every term and condition contained in Article XIII of
the
Original Indenture as amended shall apply to this Supplemental Indenture with
the same force and effect as if the same were herein set forth in full, with
such omissions, variations and modifications thereof as may be appropriate to
make the same conform to this Supplemental Indenture.
PART
VII.
Miscellaneous
Provisions.
This
Supplemental Indenture may be simultaneously executed in any number of
counterparts, each of which when so executed shall be deemed to be an original;
but such counterparts shall together constitute but one and the same
instrument.
The Company hereby constitutes and appoints Anthony J.
Kamerick, one of its Vice Presidents, to be its true and lawful
attorney-in-fact, for it and in its name to appear before any officer authorized
by law to take and certify acknowledgments of deeds to be recorded in the
District of Columbia, in the State of Maryland, in the Commonwealth of Virginia,
and in the Commonwealth of Pennsylvania and to acknowledge and deliver these
presents as the act and deed of said Company.
The Bank
of New York, hereby constitutes and appoints Cheryl L. Clarke, one of its Vice
Presidents, to be its true and lawful attorney-in-fact, for it and in its name
to appear before any officer authorized by law to take and certify
acknowledgments of deeds to be recorded in the District of Columbia, in the
State of Maryland, in the Commonwealth of Virginia, and in the Commonwealth of
Pennsylvania and to acknowledge and deliver these presents as the act and deed
of said The Bank of New York.
IN WITNESS WHEREOF, said Potomac Electric Power Company
has caused this Supplemental Indenture to be executed on its behalf by its
President or one of its Vice Presidents and its corporate seal to be hereto
affixed and said seal and this Supplemental Indenture to be attested by its
Secretary or one of its Assistant Secretaries; and said The Bank of New York, in
evidence of its acceptance of the trust hereby created, has caused this
Supplemental Indenture to be executed on its behalf by one of its Vice
Presidents, and its corporate seal to be hereto affixed and said seal and this
Supplemental Indenture to be attested by one of its Vice Presidents, all as of
the 24
th
day of
March, two thousand eight.
|
|
Potomac
Electric Power Company
|
|
(Corporate
Seal)
|
By
/s/
A. J.
KAMERICK
|
|
|
Anthony
J. Kamerick
Vice
President
|
|
Attested:
|
|
|
/s/ ELLEN S.
ROGERS
|
|
|
Ellen
Sheriff Rogers
Secretary
Signed,
sealed and delivered by
Potomac
Electric Power Company in
the
presence of:
|
|
|
/s/ PAMELA
HOLMAN
|
|
|
/s/ LESLIE ZIMBERG
MARTIN
|
|
|
As
Witnesses
|
|
|
|
The
Bank of New York, as Trustee
|
|
(Corporate
Seal)
|
By
/s/ CHERYL L.
CLARKE
|
|
Attested:
|
Cheryl
L. Clarke
Vice
President
|
|
/s/ MARY
LaGUMINA
|
|
|
Mary
LaGumina
Vice
President
Signed,
sealed and delivered by The
Bank
of New York in the presence
of:
|
|
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/s/ REMO
REALE
|
|
|
/s/ EVA
HO
|
|
|
As
Witnesses
|
|
City of
Washington,
District
of
Columbia, ss.:
I, Linda
Epperly, a Notary Public in and for the District of Columbia, United States of
America, do hereby certify that Anthony J. Kamerick and Ellen Sheriff Rogers,
whose names as Vice President and Secretary, respectively, of Potomac Electric
Power Company, a corporation, are signed to the foregoing and hereto attached
deed, bearing date as of the 24
th
day of
March, 2008, personally appeared this day before me in my District aforesaid and
acknowledged themselves to be, respectively, a Vice President and the Secretary
of Potomac Electric Power Company, and that they as such, being authorized so to
do, executed the said deed by signing the name of Potomac Electric Power Company
by Anthony J. Kamerick, as Vice President, and attested by Ellen Sheriff Rogers,
as Secretary, and acknowledged the same before me in my District aforesaid and
acknowledged the foregoing instrument to be the act and deed of Potomac Electric
Power Company.
Given
under my hand and official seal this 24
th
day of
March, 2008.
(Notarial
Seal)
/s/
LINDA J.
EPPERLY
Notary
Public
District
of Columbia
My Commission Expires:
January 1,
2010
City of
Washington,
District
of
Columbia, ss.:
I, Linda
Epperly, a Notary Public in and for the District of Columbia, United States of
America, do hereby certify that Anthony J. Kamerick, a Vice President of Potomac
Electric Power Company, a corporation, one of the parties to the foregoing
instrument bearing date as of the 24
th
day of
March, 2008, and hereto annexed, this day personally appeared before me in the
City of Washington, the said Anthony J. Kamerick being personally well known to
me as the person who executed the said instrument as a Vice President of and on
behalf of said Potomac Electric Power Company and known to me to be the
attorney-in-fact duly appointed therein to acknowledge and deliver said
instrument on behalf of said corporation, and, as such attorney-in-fact, he
acknowledged said instrument to be the act and deed of said Potomac Electric
Power Company, and delivered the same as such. I further certify that the said
Anthony J. Kamerick, being by me duly sworn, did depose and say that he knows
the seal of said corporation; that the seal affixed to said instrument is such
corporate seal and was so affixed by order of the Board of Directors of said
corporation; and that he signed his name thereto by like order.
Given
under my hand and official seal this 24
th
day of
March, 2008.
(Notarial
Seal)
/s/
LINDA J.
EPPERLY
Notary
Public
District
of Columbia
My Commission
Expires:
January 1,
2010
City of
New York,
State of
New
York, ss.:
I, Carlos
R. Luciano, a Notary Public in and for the City of New York, State of New York,
do hereby certify that Cheryl L. Clarke and Mary LaGumina, whose names as Vice
Presidents, of The Bank of New York, a New York banking corporation, are signed
to the foregoing and hereto attached deed, bearing date as of the 24
th
day of
March, 2008, personally appeared before me this day in the State aforesaid and
acknowledged themselves to be, each, a Vice President of The Bank of New York,
and that they as such, being authorized so to do, executed the said deed by
signing the name of The Bank of New York, by Cheryl L. Clarke as Vice President,
and attested by Mary LaGumina, as Vice President, and acknowledged the same
before me in the State aforesaid and acknowledged the foregoing instrument to be
the act and deed of The Bank of New York, as therein set forth.
Given
under my hand and official seal this 24
th
day of
March, 2008.
(Notarial
Seal)
|
|
/s/
CARLOS R.
LUCIANO
Notary
Public
New
York, New York
|
|
|
My
Commission Expires:_______________________
|
|
|
CARLOS
R. LUCIANO
Notary
Public, State of New York
No.
41-4765897
Qualified
in Queen County
Commission
Expires April 30, 2010
|
City of
New York,
State of
New
York, ss.:
Cheryl L. Clarke, of full age, being sworn according to
law, on his oath deposes and says that she is a Vice President of The Bank of
New York, the Trustee named in the foregoing Supplemental Indenture, dated as of
the 24
th
day of
March, 2008, that she is the agent of said Trustee for the purpose of perfecting
such Supplemental Indenture and that the consideration in the Original Indenture
referred to therein and in all indentures supplemental to said Original
Indenture, including the foregoing Supplemental Indenture, is true and bona fide
as therein set forth.
Subscribed
and sworn to before me this 24
th
day of
March, 2008.
(Notarial
Seal)
|
|
/s/
CARLOS R.
LUCIANO
Notary
Public
New
York, New York
|
|
|
My
Commission Expires:_______________________
|
|
|
CARLOS
R. LUCIANO
Notary
Public, State of New York
No.
41-4765897
Qualified
in Queen County
Commission
Expires April 30, 2010
|
City of
New York,
State of
New
York, ss.:
I, Carlos
R. Luciano, a Notary Public in and for the City of New York, State of New York,
do hereby certify that Cheryl L. Clarke a Vice President of The Bank of New
York, a New York banking corporation, one of the parties to the foregoing
instrument bearing date as of the 24
th
day of
March, 2008, and hereto annexed, this day personally appeared before me in the
City of New York, the said Cheryl L. Clarke, being personally well known to me
as the person who executed the said instrument as a Vice President of and on
behalf of said The Bank of New York, and known to me to be the attorney-in-fact
duly appointed therein to acknowledge and deliver said instrument on behalf of
said corporation, and, as such attorney-in-fact, she acknowledged said
instrument to be the act and deed of said The Bank of New York, and delivered
the same as such. I further certify that the said Cheryl L. Clarke,
being by me duly sworn, did depose and say that she knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal and
was so affixed by order of the Board of Directors of said corporation; and that
she signed her name thereto by like order.
Given
under my hand and official seal this 24
th
day of
March, 2008.
(Notarial
Seal)
|
|
/s/
CARLOS R.
LUCIANO
Notary
Public
New
York, New York
|
|
|
My
Commission Expires:_______________________
|
|
|
CARLOS
R. LUCIANO
Notary
Public, State of New York
No.
41-4765897
Qualified
in Queen County
Commission
Expires April 30, 2010
|
CERTIFICATE
OF RESIDENCE
The Bank
of New York, Mortgagee and Trustee within named, hereby certifies that its
precise address is 101 Barclay Street, New York, NY 10286.
|
|
The
Bank of New York, as Trustee
|
|
|
By
/s/ CHERYL L.
CLARKE
|
|
|
Name:
Cheryl
L. Clarke
Title:
Vice
President
|
