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EXHIBIT 1.1
CONSOLIDATED NATURAL GAS COMPANY
Senior Debt Securities
UNDERWRITING AGREEMENT
[Insert date]
[Name of Underwriter]
as Representative for the Underwriters
listed in Schedule I to this Agreement
[Address of Representative]
Ladies and Gentlemen:
The undersigned, Consolidated Natural Gas Company (the Company),
hereby confirms its agreement with the several Underwriters named in Schedule I
hereto (the Agreement) with respect to the sale to the several Underwriters of
certain of its Senior Debt Securities (the Senior Debt Securities) specified in
Schedule II hereto, and the public offering thereof by the several Underwriters,
upon the terms specified in Schedule II hereto.
1. Underwriters and Representatives. The term "Underwriters" as used
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herein shall be deemed to mean the several persons, firms or corporations
(including the Representatives hereinafter mentioned) named in Schedule I
hereto, and the term "Representatives" as used herein shall be deemed to mean
the Representatives to whom this Agreement is addressed, who by signing this
Agreement represent that they have been authorized by the other Underwriters to
execute this Agreement on their behalf and to act for them in the manner herein
provided. If there shall be only one person, firm or corporation named as an
addressee above, the term "Representatives" as used herein shall mean that
person, firm or corporation. If there shall be only one person, firm or
corporation named in Schedule I hereto, the term "Underwriters" as used herein
shall mean that person, firm or corporation. All obligations of the
Underwriters hereunder are several and not joint. Any action under or in
respect of this Agreement taken by the Representatives will be binding upon all
the Underwriters.
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2. Description of the Senior Debt Securities. Schedule II specifies
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the aggregate principal amount of the Senior Debt Securities, the initial public
offering price of the Senior Debt Securities, the purchase price to be paid by
the Underwriters, and any concession from the initial public offering price to
be allowed to dealers or brokers, and sets forth the date, time and manner of
delivery of the Senior Debt Securities and payment therefor. Schedule II also
specifies (to the extent not set forth in the Registration Statement and
Prospectus referred to below) the terms and provisions for the purchase of such
Senior Debt Securities. The Senior Debt Securities will be issued under the
Indenture dated as of ______________ (the Indenture), between the Company and
Bank One Trust Company, National Association, as trustee (the Trustee).
3. Representations and Warranties of the Company. The Company
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represents and warrants to, and agrees with, the Underwriters that:
(a) A registration statement, No. 333-_____ on Form S-3 for the
registration of the Senior Debt Securities under the Securities Act of
1933, as amended (the Securities Act), heretofore filed with the
Securities and Exchange Commission (the Commission), a copy of which
as so filed has been delivered to you, has become effective. The
registration statement, including all exhibits thereto, as amended
through the date hereof, is hereinafter referred to as the
"Registration Statement"; the prospectus relating to the Senior Debt
Securities included in the Registration Statement, which prospectus is
now proposed to be supplemented by a supplement relating to the Senior
Debt Securities to be filed with the Commission under the Securities
Act, as so supplemented, is hereinafter referred to as the
"Prospectus". As used herein, the terms "Registration Statement",
"prospectus" and "Prospectus" include all documents (including any
Current Report on Form 8-K) incorporated therein by reference, and
shall include any documents (including any Current Report on Form 8-K)
filed after the date of such Registration Statement, prospectus or
Prospectus and incorporated therein by reference from the date of
filing of such incorporated documents (collectively, the Incorporated
Documents).
(b) No order suspending the effectiveness of the Registration
Statement or otherwise preventing or suspending the use of the
Prospectus has been issued by the Commission and is in effect and no
proceedings for that purpose are pending before or, to the knowledge
of the Company, threatened by the Commission. The Registration
Statement and the Prospectus comply in all material respects with the
provisions of the Securities Act, the Securities Exchange Act of 1934,
as amended (the Securities Exchange Act), the Trust Indenture Act of
1939, as amended (the Trust Indenture Act), and the rules, regulations
and releases of the Commission thereunder (the Rules and Regulations)
and, neither the Registration Statement on the date it was declared
effective (the Effective Date) nor the Prospectus on the date hereof
contained or contains an untrue statement of a material fact or
omitted or omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading,
and, on the Closing Date (as defined below), the Registration
Statement and the Prospectus (including any amendments and supplements
thereto) will conform in all respects to the requirements of the
Securities Act, the Trust
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Indenture Act and the Rules and Regulations, and neither of such
documents will include any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary
to make the statements therein not misleading; provided, that the
foregoing representations and warranties in this Section 3(b) shall
not apply to statements in or omissions from the Registration
Statement or the Prospectus made in reliance upon information
furnished herein or in writing to the Company by the Underwriters or
on the Underwriters' behalf through the Representatives for use in the
Registration Statement or Prospectus or the part of the Registration
Statement which constitutes the Trustee's Statement of Eligibility
under the Trust Indenture Act; and provided, further, that the
foregoing representations and warranties are given on the basis that
any statement contained in an Incorporated Document shall be deemed
not to be contained in the Registration Statement or Prospectus if the
statement has been modified or superseded by any statement in a
subsequently filed Incorporated Document or in the Registration
Statement or Prospectus or in any amendment or supplement thereto.
(c) Except as reflected in, or contemplated by, the Registration
Statement and Prospectus (exclusive of any amendments or supplements
after the date hereof), since the respective most recent dates as of
which information is given in the Registration Statement and
Prospectus (exclusive of any amendments or supplements after the date
hereof), there has not been any material adverse change or event which
would result in a material adverse effect on the condition of the
Company and its subsidiaries taken as a whole, financial or otherwise
(a Material Adverse Effect). The Company and its subsidiaries taken as
a whole have no material contingent financial obligation which is not
disclosed in the Registration Statement and the Prospectus.
(d) Deloitte & Touche LLP who have reviewed certain of the
Company's financial statements filed with the Commission and
incorporated by reference in the Registration Statement, and
PricewaterhouseCoopers LLP, who have certified certain of the
Company's financial statements filed with the Commission and
incorporated by reference in the Registration Statement are
independent public accountants as required by the Securities Act and
the rules and regulations of the Commission thereunder.
(e) [The Peoples Natural Gas Company, The East Ohio Gas Company,
Hope Gas, Inc. and Dominion Transmission Corporation are the only
Significant Subsidiaries of the Company as such term is defined in
Rule 1-02 of Regulation S-X (when such Rule is applied to the pro-
forma fiscal year ended December 31, 1999).] All of the issued and
outstanding capital stock of each Significant Subsidiary has been duly
authorized and validly issued, is fully paid and nonassessable, and
the capital stock of each Significant Subsidiary is owned by the
Company, directly or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, claim, encumbrance or
equitable right.
(f) The execution, delivery and performance of this Agreement, the
Indenture and the Senior Debt Securities and the consummation of the
transactions contemplated in
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this Agreement and in the Registration Statement (including the
issuance and sale of the Senior Debt Securities and the use of the
proceeds from the sale of the Senior Debt Securities as described in
the Prospectus under the caption "Use Of Proceeds") and compliance by
the Company with its obligations under this Agreement, the Indenture
and the Senior Debt Securities do not and will not, whether with or
without the giving of notice or lapse of time or both, conflict with
or constitute a breach of, or default under or result in the creation
or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any subsidiary pursuant to any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note,
lease or any other agreement or instrument, to which the Company or
any subsidiary is a party or by which it or any of them may be bound,
or to which any of the property or assets of the Company or any
subsidiary is subject (except for such conflicts, breaches or defaults
or liens, charges or encumbrances that would not have a Material
Adverse Effect), nor will such action result in any violation of the
provisions of the charter or bylaws of the Company or any subsidiary,
or any applicable law, statute, rule, regulation, judgment, order,
writ or decree, known to the Company, of any government, government
instrumentality or court, domestic or foreign, having jurisdiction
over the Company or any subsidiary or any of their respective
properties, assets or operations, and the Company has full power and
authority to authorize, issue and sell the Senior Debt Securities as
contemplated by this Agreement.
4. Public Offering. On the basis of the representations and
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warranties herein contained, but subject to the terms and conditions in this
Agreement set forth, the Company agrees to sell to each of the Underwriters, and
each Underwriter agrees, severally and not jointly, to purchase from the
Company, at the price, place and time hereinafter specified, the principal
amount of the Senior Debt Securities set forth opposite the name of such
Underwriter in Schedule I hereto. The Underwriters agree to make a public
offering of their respective Senior Debt Securities specified in Schedule I
hereto at the initial public offering price specified in Schedule II hereto. It
is understood that after such initial offering the several Underwriters reserve
the right to vary the offering price and further reserve the right to withdraw,
cancel or modify such offering without notice.
5. Time and Place of Closing. Delivery of the Senior Debt Securities
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to, and payment therefor by, the Representatives for the accounts of the several
Underwriters shall be made at the time, place and date specified in Schedule II
or such other time, place and date as the Representatives and the Company may
agree upon in writing, and subject to the provisions of Section 10 hereof. The
hour and date of such delivery and payment are herein called the "Closing Date".
Unless otherwise specified in Schedule II hereto, payment for the Senior Debt
Securities shall be made by wire transfer of immediately available funds to the
Company's account on the Closing Date against delivery of the Senior Debt
Securities, in fully registered form, registered in the name of Cede & Co., as
nominee for The Depository Trust Company. The certificate(s) for the Senior Debt
Securities will be made available at the location specified on Schedule II for
examination by the Representatives not later than 12:00 noon, New York time, on
the last business day prior to the Closing Date.
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6. Covenants of the Company. The Company agrees with each of the
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Underwriters that:
(a) If the Representatives so request, the Company, at or prior to
the Closing Date, will deliver to the Representatives conformed copies
of the Registration Statement as originally filed, including all
exhibits, any related preliminary prospectus supplement, the
Prospectus and all amendments and supplements to each such document,
in each case as soon as available and in such quantities as are
reasonably requested by the Representatives. The Representatives will
be deemed to have made such a request for copies for each of the
several Underwriters and ____________, counsel to the Underwriters
(Underwriters' Counsel), with respect to any such documents that are
not electronically available through the Commission's EDGAR filing
system.
(b) The Company will pay all expenses in connection with (i) the
preparation and filing by it of the Registration Statement and
Prospectus, (ii) the preparation, issuance and delivery of the Senior
Debt Securities, (iii) any fees and expenses of the Trustee and (iv)
the printing and delivery to the Underwriters in reasonable quantities
of copies of the Registration Statement and the Prospectus (each as
originally filed and as subsequently amended). The Company also will
pay all taxes, if any, on the issuance of the Senior Debt Securities.
In addition, the Company will pay the reasonable out of pocket fees
and disbursements of Underwriters' Counsel in connection with the
qualification of the Senior Debt Securities under state securities or
blue sky laws or investment laws (if and to the extent such
qualification is required by the Underwriters or the Company).
(c) If, during the time when a prospectus relating to the Senior
Debt Securities is required to be delivered under the Securities Act,
any event occurs as a result of which the Prospectus as then amended
or supplemented would include an untrue statement of a material fact
or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, or if it is necessary at any time to amend the
Prospectus to comply with the Securities Act, the Company promptly
will (i) notify the Representatives to suspend solicitation of
purchases of the Senior Debt Securities and (ii) at its expense,
prepare and file with the Commission an amendment or supplement which
will correct such statement or omission or an amendment which will
effect such compliance. During the period specified above, the Company
will continue to prepare and file with the Commission on a timely
basis all documents or amendments required under the Securities
Exchange Act and the applicable rules and regulations of the
Commission thereunder; provided, that the Company shall not file such
documents or amendments without also furnishing copies thereof to the
Representatives and Underwriters' Counsel. Any such documents or
amendments which are electronically available through the Commission's
EDGAR filing system will be deemed to have been furnished by the
Company to the Representatives and Underwriters' Counsel.
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(d) The Company will advise the Representatives promptly of any
proposal to amend or supplement the Registration Statement or the
Prospectus and will afford the Representatives a reasonable
opportunity to comment on any such proposed amendment or supplement;
and the Company will also advise the Representatives promptly of the
filing of any such amendment or supplement and of the institution by
the Commission of any stop order proceedings in respect of the
Registration Statement or of any part thereof and will use its best
efforts to prevent the issuance of any such stop order and to obtain
as soon as possible its lifting, if issued.
(e) The Company will make generally available to its security
holders, as soon as it is practicable to do so, an earnings statement
of the Company (which need not be audited) in reasonable detail,
covering a period of at least 12 months beginning within three months
after the Effective Date, which earnings statement shall satisfy the
requirements of Section 11(a) of the Securities Act.
(f) The Company will furnish such proper information as may be
lawfully required and otherwise cooperate in qualifying the Senior
Debt Securities for offer and sale under the securities or blue sky
laws of such states as the Representatives may designate; provided,
however, that the Company shall not be required in any state to
qualify as a foreign corporation, or to file a general consent to
service of process, or to submit to any requirements which it deems
unduly burdensome.
(g) Fees and disbursements of Underwriters' Counsel (exclusive of
fees and disbursements of such counsel which are to be paid as set
forth in Section 6(b)), shall be paid by the Underwriters; provided,
however, that if this Agreement is terminated in accordance with the
provisions of Sections 7 or 8 hereof, the Company shall reimburse the
Representatives for the account of the Underwriters for the amount of
such fees and disbursements.
(h) During the period beginning on the date of this Agreement and
continuing to and including the Closing Date, the Company will not,
without the prior written consent of the Representatives, directly or
indirectly, sell or offer to sell or otherwise dispose of any Senior
Debt Securities or any security convertible into or exchangeable for
the Senior Debt Securities or any debt securities substantially
similar to the Senior Debt Securities (except for the Senior Debt
Securities issued pursuant to this Agreement).
7. Conditions of Underwriters' Obligations; Termination by the
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Underwriters.
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(a) The obligations of the Underwriters to purchase and pay for the
Senior Debt Securities shall be subject to the following conditions:
(i) No stop order suspending the effectiveness of the
Registration Statement shall be in effect on the Closing Date and no
proceedings for that purpose
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shall be pending before, or to the knowledge of the Company threatened
by, the Commission on such date. The Representatives shall have
received, prior to payment for the Senior Debt Securities, a
certificate dated the Closing Date and signed by the President or any
Vice President of the Company to the effect that no such stop order is
in effect and that no proceedings for such purpose are pending before
or, to the knowledge of the Company, threatened by the Commission.
(ii) On the Closing Date an order or orders of the Commission
pursuant to the Public Utility Holding Company Act of 1935, as
amended, permitting the issuance and sale of the Senior Debt
Securities shall be in full force and effect and all provisions of
such order or orders heretofore entered are deemed acceptable to the
Representatives and the Company, and all provisions of such order or
orders hereafter entered shall be deemed acceptable to the
Representatives and the Company unless within 24 hours after receiving
a copy of any such order either shall give notice to the other to the
effect that such order contains an unacceptable provision.
(iii) On the Closing Date the Representatives shall receive, on
behalf of the several Underwriters, the opinions of Underwriters'
Counsel, McGuireWoods LLP, counsel to the Company, and the Company's
General Counsel, substantially in the forms attached hereto as
Schedules III, IV and V, respectively, all in form and substance
satisfactory to the Representatives.
(iv) The Representatives shall have received from Deloitte &
Touche LLP, on the date of this Agreement and on the Closing Date, and
from PricewaterhouseCoopers LLP, on the date of this Agreement and
only with respect to periods ending not later than December 31, 1999,
a letter addressed to the Representatives, dated the date of this
Agreement and the Closing Date with respect to Deloitte & Touche LLP,
and dated the date of this Agreement with respect to
PricewaterhouseCoopers LLP, containing statements and information of
the type ordinarily included in accountants' SAS 72 "comfort letters"
to underwriters with respect to the financial statements and certain
financial information contained in or incorporated by reference into
the Prospectus, including the pro-forma financial information.
(v) Subsequent to the execution of this Agreement and prior to
the Closing Date, (A) except as reflected in, or contemplated by, the
Registration Statement and the Prospectus (exclusive of amendments or
supplements after the date hereof), there shall not have occurred (1)
any change in the Senior Debt Securities of the Company of the same
class (other than a decrease in the aggregate principal amount thereof
outstanding), (2) any material adverse change in the general affairs,
financial condition or earnings of the Company and its subsidiaries
taken as a whole or (3) any material transaction entered into by the
Company or a
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Significant Subsidiary other than a transaction in the ordinary course
of business, the effect of which in each such case in the reasonable
judgment of the Representatives is so material and so adverse that it
makes it impracticable to proceed with the public offering or delivery
of the Senior Debt Securities on the terms and in the manner
contemplated in the Prospectus and this Agreement, or (B) there shall
not have occurred (1) a downgrading in the rating accorded the
Company's senior indebtedness, or securities that are pari passu to
the Company's senior indebtedness, by any "nationally recognized
statistical rating organization" (as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the Securities Act)
and no such organization shall have given any notice of any intended
or potential downgrading or of any review for a possible change with
possible negative implications in its ratings of such securities, (2)
any general suspension of trading in securities on the New York Stock
Exchange or any limitation on prices for such trading or any
restrictions on the distribution of securities established by the New
York Stock Exchange or by the Commission or by any federal or state
agency or by the decision of any court, (3) a suspension of trading of
any securities of the Company or of Dominion Resources, Inc. on the
New York Stock Exchange, (4) a banking moratorium declared either by
federal or New York State authorities or (5) any outbreak or
escalation of major hostilities in which the United States is
involved, any declaration of war by the United States Congress or any
other substantial national or international calamity or crisis
resulting in the declaration of a national emergency, or if there has
occurred any material adverse change in the financial markets, the
effect of which outbreak, escalation, declaration, calamity, crisis or
material adverse change, in the reasonable judgment of the
Representatives, makes it impracticable to proceed with the public
offering or delivery of the Senior Debt Securities on the terms and in
the manner contemplated in the Prospectus and in this Agreement.
(vi) On the Closing Date, the representations and warranties of
the Company in this Agreement shall be true and correct as if made on
and as of such date, and the Company shall have performed all
obligations and satisfied all conditions required of it under this
Agreement; and, at the Closing Date, the Representatives shall have
received a certificate to such effect signed by the President or any
Vice President of the Company.
(vii) All legal proceedings to be taken in connection with the
issuance and sale of the Senior Debt Securities shall have been
satisfactory in form and substance to Underwriters' Counsel.
(b) In case any of the conditions specified above in Section 7(a)
shall not have been fulfilled, this Agreement may be terminated by the
Representatives upon mailing or delivering written notice thereof to the
Company; provided, however, that in case the conditions specified in
subsections 7(a)(v) and (vi) shall not have been fulfilled, this
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Agreement may not be so terminated by the Representatives unless
Underwriters who have agreed to purchase in the aggregate 50% or more of
the aggregate principal amount of the Senior Debt Securities shall have
consented to such termination and the aforesaid notice shall so state. Any
such termination shall be without liability of any party to any other party
except as otherwise provided in Section 9 and Sections 6(b), 6(g) and 7(c)
hereof.
(c) If this Agreement shall be terminated by the Representatives
pursuant to Section 7(b) above or because of any failure or refusal on the
part of the Company to comply with the terms or to fulfill any of the
conditions of this Agreement, or if for any reason the Company shall be
unable to perform its obligations under this Agreement, then in any such
case, the Company will reimburse the Underwriters, severally, for all out-
of-pocket expenses (in addition to the fees and disbursements of their
outside counsel as provided in Section 6(g)) reasonably incurred by such
Underwriters in connection with this Agreement or the offering contemplated
hereunder and, upon such reimbursement, the Company shall be absolved from
any further liability hereunder, except as provided in Section 6(b) and
Section 9.
8. Conditions of the Obligation of the Company. The obligation of
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the Company to deliver the Senior Debt Securities shall be subject to the
conditions set forth in the first sentence of Section 7(a)(i) and in Section
7(a)(ii). In case such conditions shall not have been fulfilled, this Agreement
may be terminated by the Company by mailing or delivering written notice thereof
to the Representatives. Any such termination shall be without liability of any
party to any other party except as otherwise provided in Sections 6(b), 6(g), 9
and 10 hereof.
9. Indemnification and Contribution. (a) The Company agrees to
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indemnify and hold harmless each Underwriter and each person who controls any
Underwriter within the meaning of Section 15 of the Securities Act or Section
20(a) of the Securities Exchange Act, against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them may
become subject under the Securities Act, the Securities Exchange Act, or any
other statute or common law and to reimburse each such Underwriter and
controlling person for any legal or other expenses (including, to the extent
hereinafter provided, reasonable outside counsel fees) incurred by them in
connection with investigating or defending any such losses, claims, damages, or
liabilities, or in connection with defending any actions, insofar as such
losses, claims, damages, liabilities, expenses or actions arise out of or are
based upon any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or the Prospectus, or in either such
document as amended or supplemented (if any amendments or supplements thereto
shall have been furnished), or any preliminary Prospectus (if and when used
prior to the Effective Date), or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading; provided that the foregoing indemnity
agreement, insofar as it relates to any preliminary Prospectus, shall not inure
to the benefit of any Underwriter (or to the benefit of any person who controls
such Underwriter) on account of any losses, claims, damages or liabilities
arising out of the sale of any of the Senior Debt Securities by such Underwriter
to any person if it shall be established that a copy of the Prospectus,
excluding any documents incorporated
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by reference (as supplemented or amended, if the Company shall have made any
supplements or amendments which have been furnished to the Representatives),
shall not have been sent or given by or on behalf of such Underwriter to such
person at or prior to the written confirmation of the sale to such person in any
case where such delivery is required by the Securities Act and the Company
satisfied its obligations pursuant to Section 6(a) hereof, if the misstatement
or omission leading to such loss, claim, damage or liability was corrected in
the Prospectus (excluding any documents incorporated by reference) as amended or
supplemented, and such correction would have cured the defect giving rise to
such loss, claim, damage, or liability; and provided further, however, that the
indemnity agreement contained in this Section 9(a) shall not apply to any such
losses, claims, damages, liabilities, expenses or actions arising out of or
based upon any such untrue statement or alleged untrue statement, or any such
omission or alleged omission, if such statement or omission was made in reliance
upon information furnished herein or otherwise in writing to the Company by or
on behalf of any Underwriter for use in the Registration Statement or any
amendment thereto, in the Prospectus or any supplement thereto, or in any
preliminary Prospectus. The indemnity agreement of the Company contained in this
Section 9(a) and the representations and warranties of the Company contained in
Section 3 hereof shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of any Underwriter or any such
controlling person, and shall survive the delivery of the Senior Debt
Securities.
(b) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its officers and directors, and each person who
controls any of the foregoing within the meaning of Section 15 of the Securities
Act or Section 20(a) of the Securities Exchange Act, against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of them
may become subject under the Securities Act, the Securities Exchange Act, or any
other statute or common law and to reimburse each of them for any legal or other
expenses (including, to the extent hereinafter provided, reasonable outside
counsel fees) incurred by them in connection with investigating or defending any
such losses, claims, damages or liabilities or in connection with defending any
actions, insofar as such losses, claims, damages, liabilities, expenses or
actions arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or the
Prospectus, or in either such document as amended or supplemented (if any
amendments or supplements thereto shall have been furnished), or any preliminary
Prospectus (if and when used prior to the Effective Date), or the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, if such statement or
omission was made in reliance upon information furnished herein or in writing to
the Company by or on behalf of such Underwriter for use in the Registration
Statement or the Prospectus or any amendment or supplement to either thereof, or
any preliminary Prospectus. The indemnity agreement of the respective
Underwriters contained in this Section 9(b) shall remain operative and in full
force and effect, regardless of any investigation made by or on behalf of the
Company or any such controlling person, and shall survive the delivery of the
Senior Debt Securities.
(c) The Company and each of the Underwriters agrees that, upon the
receipt of notice of the commencement of any action against the Company or any
of its officers or directors, or any
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person controlling the Company, or against such Underwriter or controlling
person as aforesaid, in respect of which indemnity may be sought on account of
any indemnity agreement contained herein, it will promptly give written notice
of the commencement thereof to the party or parties against whom indemnity shall
be sought hereunder, but the omission so to notify such indemnifying party or
parties of any such action shall not relieve such indemnifying party or parties
from any liability which it or they may have to the indemnified party otherwise
than on account of such indemnity agreement. In case such notice of any such
action shall be so given, such indemnifying party shall be entitled to
participate at its own expense in the defense or, if it so elects, to assume (in
conjunction with any other indemnifying parties) the defense of such action, in
which event such defense shall be conducted by counsel chosen by such
indemnifying party (or parties) and satisfactory to the indemnified party or
parties who shall be defendant or defendants in such action, and such defendant
or defendants shall bear the fees and expenses of any additional outside counsel
retained by them; provided that, if the defendants (including impleaded parties)
in any such action include both the indemnified party and the indemnifying party
(or parties) and the indemnified party shall have reasonably concluded that
there may be legal defenses available to it and/or other indemnified parties
which are different from or additional to those available to the indemnifying
party (or parties), the indemnified party shall have the right to select
separate counsel to assert such legal defenses and to participate otherwise in
and direct the defense of such action on behalf of such indemnified party. The
indemnifying party shall bear the reasonable fees and expenses of outside
counsel retained by the indemnified party if (i) the indemnified party shall
have retained such counsel in connection with the assertion of legal defenses in
accordance with the proviso to the preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the expenses of
more than one separate counsel (in addition to one local counsel), representing
the indemnified parties under Section 9(a) or 9(b), as the case may be, who are
parties to such action), (ii) the indemnifying party shall have elected not to
assume the defense of such action, (iii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the commencement of
the action, or (iv) the indemnifying party has authorized the employment of
counsel for the indemnified party at the expense of the indemnifying party.
Notwithstanding the foregoing sentence, an indemnifying party shall not be
liable for any settlement of any proceeding effected without its written consent
(such consent not to be unreasonably withheld), but if settled with such consent
or if there be a final judgment for the plaintiff, the indemnifying party agrees
to indemnify the indemnified party from and against any loss or liability by
reason of such settlement or judgment. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which indemnification may be
sought hereunder (whether or not the indemnified party is an actual or potential
party to such a proceeding), unless such settlement (i) includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding and (ii) does not include a
statement as to or an admission of fault, culpability or failure to act by or on
behalf of any indemnified party.
(d) If the indemnification provided for in Section 9(a) or 9(b) is
unavailable to or insufficient to hold harmless an indemnified party in respect
of any losses, claims, damages or
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<PAGE>
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative fault of the Company, on the one hand, and of the Underwriters, on the
other, in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations, including relative benefit. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading relates to
information supplied by the Company on the one hand or by the Underwriters on
the other and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
the Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 9(d) were determined by pro rata allocation or by any
other method of allocation which does not take account of the equitable
considerations referred to above in this Section 9(d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this Section
9(d) shall be deemed to include any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations under this Section 9(d) to
contribute are several in proportion to their respective underwriting
obligations and not joint. The remedies provided for in this Section 9 are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
10. Termination. If any one or more of the Underwriters shall
-----------
default in its obligations under the Agreement to purchase the Senior Debt
Securities which it or they have agreed to purchase hereunder, and the aggregate
principal amount of the Senior Debt Securities which such defaulting Underwriter
or Underwriters agreed but defaulted in its obligations with respect thereto is
not more than one-tenth of the aggregate principal amount of the Senior Debt
Securities, then the other Underwriters shall be obligated severally in the
proportions which the principal amount of the Senior Debt Securities set forth
opposite their respective names in Schedule I bears to the aggregate
underwriting obligations of all non-defaulting Underwriters, or in such other
proportions as the Underwriters may specify, to purchase the Senior Debt
Securities which such defaulting Underwriter or Underwriters defaulted in its
obligations with respect thereto. If any Underwriter or Underwriters shall so
default in its or their obligation to purchase Senior Debt Securities and the
aggregate principal amount of the Senior Debt Securities with respect to which
such default occurs is more than one-tenth of the aggregate principal amount of
the Senior Debt Securities and arrangements satisfactory to the Underwriters and
the Company for the purchase of such Senior Debt Securities are not made within
36 hours after such default, this Agreement will terminate without liability on
the part of any non-defaulting Underwriter (except as provided in Section 6(g)
and Section 9) or of the Company (except as provided in Section 6(b) and Section
9). In any such case not involving a termination, either the Representatives or
the Company shall have the right to
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<PAGE>
postpone the Closing Date, but in no event for longer than seven days, in order
that the required changes, if any, in the Registration Statement and in the
Prospectus or in any other documents or arrangements may be effected. Any action
taken under this Section 10 shall not relieve any defaulting Underwriter from
liability in respect of any default of such Underwriter under this Agreement.
11. Representations, Warranties and Agreements to Survive Delivery.
--------------------------------------------------------------
All representations, warranties and agreements contained in this Agreement or
contained in certificates of officers of the Company submitted pursuant hereto
shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of any Underwriter or any controlling person
of any Underwriter, or by or on behalf of the Company, and shall survive
delivery of the Senior Debt Securities.
12. Miscellaneous. The validity and interpretation of this Agreement
-------------
shall be governed by the laws of the State of New York. This Agreement shall
inure to the benefit of the Company, the Underwriters and, with respect to the
provisions of Section 9 hereof, each controlling person and each officer and
director of the Company referred to in Section 9, and their respective
successors, assigns, executors and administrators. Nothing in this Agreement is
intended or shall be construed to give to any other person, firm or corporation
any legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision herein contained. The term "successors" as used in
this Agreement shall not include any purchaser, as such, of any of the Senior
Debt Securities from any of the several Underwriters.
13. Notices. All communications hereunder shall be in writing and if
-------
to the Underwriters shall be mailed, telecopied or delivered to the
Representatives at the address set forth on Schedule II hereto, or if to the
Company shall be mailed, telecopied or delivered to it, attention of Treasurer,
Consolidated Natural Gas Company, 120 Tredegar Street, Richmond, Virginia 23219
(facsimile number: (804) 819-2211).
-13-
<PAGE>
Please sign and return to us a counterpart of this letter, whereupon
this letter will become a binding agreement between the Company and the several
Underwriters in accordance with its terms.
CONSOLIDATED NATURAL GAS COMPANY
By:_________________________________
Name:
Title:
The foregoing agreement is
hereby confirmed and accepted,
as of the date first above
written.
[Name of representative]
acting individually and as Representative
of the Underwriters named in Schedule I hereto
By: [Name of Representative]
________________________________
Authorized Signatory
Name:
Title:
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<PAGE>
SCHEDULE I
Principal Amount
of Senior Debt Securities to be
Underwriter Purchased
----------- -----------------------
___________
Total: $
I-1
<PAGE>
SCHEDULE II
Title of Senior Debt Securities:
Aggregate Principal Amount: $
Initial Price to Public:
___% of the principal amount of the Senior Debt Securities plus accrued
interest, if any, from the date of issuance
Initial Purchase Price to be paid by Underwriters:
___% of the principal amount of the Senior Debt Securities
Time of Delivery:
Closing Location:
The Senior Debt Securities will be available for inspection by the
Representative at:
Address for Notices to the Underwriters:
[with a copy to Underwriters' counsel]
II-1
<PAGE>
SCHEDULE III
PROPOSED FORM OF OPINION
OF
UNDERWRITERS' COUNSEL
Re: CONSOLIDATED NATURAL GAS COMPANY
Senior Debt Securities,
[Insert date]
[Name of Representative]
as Representative for the Underwriters
listed in Schedule I to the Underwriting Agreement
[Address of Representative]
Ladies and Gentlemen:
We have acted as counsel for you in connection with arrangements for
the issuance by Consolidated Natural Gas Company (the Company) of [insert
description of Senior Debt Securities being issued] (the Senior Debt
Securities), under and pursuant to an Indenture dated as of ______________,
between the Company and Bank One Trust Company, National Association, as
trustee, and the offering of the Senior Debt Securities by you pursuant to an
Underwriting Agreement dated _________, by and between you and the Company (the
Underwriting Agreement). All terms not otherwise defined herein shall have the
meanings set forth in the Underwriting Agreement.
We have examined originals, or copies certified to our satisfaction of
such corporate records of the Company, indentures, agreements and other
instruments, certificates of public officials, certificates of officers and
representatives of the Company and of the Trustee, and other documents, as we
have deemed necessary as a basis for the opinions hereinafter expressed. As to
various questions of fact material to such opinions, we have, when relevant
facts were not independently established, relied upon certifications by officers
of the Company, the Trustee and other appropriate persons and statements
contained in the Registration Statement hereinafter mentioned. All legal
proceedings taken as of the date hereof in connection with the transactions
contemplated by the Underwriting Agreement have been satisfactory to us.
III-1
<PAGE>
In addition, we attended the closing held today at the offices of
_______________, at which the Company satisfied the conditions contained in
Section 7 of the Underwriting Agreement that are required to be satisfied as of
the Closing Date.
Based upon the foregoing, and having regard to legal considerations
that we deem relevant, we are of the opinion that:
1. The Company is a corporation duly incorporated and existing as a
corporation in good standing under the laws of Delaware, and has the corporate
power to transact its business as described in the Prospectus.
2. The Underwriting Agreement has been duly authorized by all
necessary corporate action and has been duly executed and delivered by the
Company.
3. The Indenture has been duly qualified under the Trust Indenture
Act and has been duly authorized, executed, and delivered by, and constitutes a
valid and binding obligation of, the Company, except as enforcement thereof may
be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights generally or by
general equitable principles (regardless of whether enforcement is considered in
a proceeding in equity or at law).
4. The Senior Debt Securities have been duly authorized by the
Company and, when duly executed by the Company and completed and authenticated
by the Trustee in accordance with, and in the form contemplated by, the
Indenture and issued, delivered and paid for as provided in the Underwriting
Agreement, will have been duly issued under the Indenture and will constitute
valid and binding obligations of the Company entitled to the benefits provided
by the Indenture, except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally or by general equitable principles
(regardless of whether enforcement is considered in a proceeding in equity or at
law).
5. The Registration Statement (Reg. No. 333-_____) with respect to
the Senior Debt Securities filed pursuant to the Securities Act, has become
effective and remains in effect at this date, and the Prospectus may lawfully be
used for the purposes specified in the Securities Act in connection with the
offer for sale and the sale of Senior Debt Securities in the manner therein
specified.
6. The Registration Statement and the Prospectus (except the
financial statements incorporated by reference therein, as to which we express
no opinion) appear on their face to be appropriately responsive in all material
respects to the requirements of the Securities Act, and to the applicable rules
and regulations of the Commission thereunder.
7. As to the statements relating to the Senior Debt Securities
contained in the prospectus under CERTAIN TERMS AND DESCRIPTIONS OF DEBT
SECURITIES AND INDENTURE, as supplemented by the statements under the
[SUPPLEMENTAL
III-2
<PAGE>
DESCRIPTION OF THE SENIOR DEBT SECURITIES] in the Prospectus Supplement dated
_____________ (the Prospectus Supplement), we are of the opinion that the
statements are accurate and do not omit any material fact required to be stated
therein or necessary to make such statements not misleading.
8. As to the statistical statements in the Registration Statement
(which includes the Incorporated Documents), we have relied solely on the
officers of the Company. As to the other matters, we have not undertaken to
determine independently the accuracy or completeness of the statements contained
or incorporated by reference in the Registration Statement or in the Prospectus.
We accordingly assume no responsibility for the accuracy or completeness of the
statements made in the Registration Statement except as stated above in regard
to the captions in the opinion in the preceding paragraph. We note that we were
not involved in the preparation of the Registration Statement or the prospectus
initially filed as part thereof, and that the Incorporated Documents were
prepared and filed by the Company without our participation. We have, however,
participated in conferences with counsel for and representatives of the Company
in connection with the preparation of the Prospectus Supplement, and we have
reviewed the Incorporated Documents and such of the corporate records of the
Company as we deemed advisable. None of the foregoing disclosed to us any
information that gives us reason to believe that the Registration Statement
(except the financial statements incorporated by reference therein, as to which
we express no opinion) contained on the date the Registration Statement became
effective, or the Prospectus contained on the date it was issued, or that the
Registration Statement or the Prospectus now contains, any untrue statement of a
material fact or omitted on said date or now omits to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading. The foregoing opinion is given on the basis that any statement
contained in an Incorporated Document shall be deemed not to be contained in the
Registration Statement or Prospectus if the statement has been modified or
superseded by any statement in a subsequently filed Incorporated Document or in
the Registration Statement or Prospectus.
9. An appropriate order of the Securities and Exchange Commission
(the Commission) with respect to the sale of the Senior Debt Securities under
the Public Utility Holding Company Act of 1935, as amended, has been issued, and
such order remains in effect at this date and constitutes valid and sufficient
authorization for the sale of the Senior Debt Securities as contemplated by the
Underwriting Agreement. No approval or consent by any public regulatory body,
other than such order and notification of effectiveness by the Commission, is
legally required in connection with the sale of the Senior Debt Securities as
contemplated by the Underwriting Agreement (except to the extent that compliance
with the provisions of securities or blue sky laws of certain states may be
required in connection with the sale of the Senior Debt Securities in such
states) and the carrying out of the provisions of the Underwriting Agreement.
We do not purport to express an opinion on any laws other than those
of the Commonwealth of Virginia, the State of Delaware, the State of New York
and the United States of America. This opinion may not be relied upon by, nor
may copies be delivered to, any person without our prior written consent.
III-3
<PAGE>
SCHEDULE IV
PROPOSED FORM OF OPINION
OF
MCGUIREWOODS LLP
One James Center
901 East Cary Street
Richmond, Virginia 23219
Re: CONSOLIDATED NATURAL GAS COMPANY
Senior Debt Securities
[Insert date]
[Name of Representative]
as Representative for the Underwriters
listed in Schedule I to the Underwriting
Agreement
[Address of Representative]
Ladies and Gentlemen:
The arrangements for issuance of [insert description of Senior Debt
Securities] (the Senior Debt Securities), of Consolidated Natural Gas Company
(the Company) under an Indenture dated as of _____________ (the "Indenture"),
between the Company and Bank One Trust Company, National Association, as trustee
(the Trustee), (the Indenture), and pursuant to an Underwriting Agreement dated
_____________, by and between the Company and the Underwriters listed on
Schedule I as attached thereto (the Underwriting Agreement), have been taken
under our supervision as counsel for the Company. Terms not otherwise defined
herein have the meanings set forth in the Underwriting Agreement.
We have examined originals, or copies certified to our satisfaction,
of such corporate records of the Company, indentures, agreements, and other
instruments, certificates of public officials, certificates of officers and
representatives of the Company and of the Trustee, and other documents, as we
have deemed it necessary to require as a basis for the opinions hereinafter
expressed. As to various questions of fact material to such opinions, we have,
when relevant facts were not independently established, relied upon
certifications by officers of the Company, the Trustee and other appropriate
persons and statements contained in the Registration
IV-1
<PAGE>
Statement hereinafter mentioned. All legal proceedings taken as of the date
hereof in connection with the transactions contemplated by the Underwriting
Agreement have been satisfactory to us.
On this basis we are of the opinion that:
1. No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency, domestic or foreign (other than those required under the
Public Utility Holding Company Act of 1935, the Securities Act and the Rules and
Regulations, which have been obtained, or as may be required under the
securities or blue sky laws of the various states) is necessary or required in
connection with the due authorization, execution and delivery of the
Underwriting Agreement or the due execution, delivery or performance of the
Indenture or the Senior Debt Securities by the Company or for the offering,
issuance, sale or delivery of the Senior Debt Securities. An appropriate order
of the Securities and Exchange Commission (the Commission) with respect to the
sale of the Senior Debt Securities under the Public Utility Holding Company Act
of 1935, as amended, has been issued, and such order remains in effect at this
date and constitutes valid and sufficient authorization for the sale of the
Senior Debt Securities as contemplated by the Underwriting Agreement.
2. The Indenture has been duly qualified under the Trust Indenture
Act and has been duly authorized, executed, and delivered by, and constitutes a
valid and binding obligation of, the Company, except as enforcement thereof may
be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights generally or by
general equitable principles (regardless of whether enforcement is considered in
a proceeding in equity or at law).
3. The Senior Debt Securities have been duly authorized and executed
by the Company and, when completed and authenticated by the Trustee in
accordance with, and in the form contemplated by, the Indenture and issued,
delivered and paid for in accordance with the Underwriting Agreement, will have
been duly issued under the Indenture and will constitute valid and binding
obligations of the Company entitled to the benefits provided by the Indenture,
except as enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights generally or by general equitable principles (regardless of
whether enforcement is considered in a proceeding in equity or at law).
4. The Registration Statement (Reg. No. 333-______) with respect to
the Senior Debt Securities filed pursuant to the Securities Act, has become
effective and remains in effect at this date, and the Prospectus may lawfully be
used for the purposes specified in the Securities Act in connection with the
offer for sale and the sale of the Senior Debt Securities in the manner therein
specified.
5. The Registration Statement and the Prospectus (except the
financial statements incorporated by reference therein, as to which we express
no opinion) appear on their face to be appropriately responsive in all material
respects to the requirements of the Securities Act, and to the applicable rules
and regulations of the Commission thereunder.
IV-2
<PAGE>
6. We are of the opinion that the statements relating to the Senior
Debt Securities contained in the prospectus under CERTAIN TERMS AND DESCRIPTIONS
OF DEBT SECURITIES AND INDENTURE, as supplemented by the statements under
[SUPPLEMENTAL DESCRIPTION OF THE SENIOR DEBT SECURITIES] in the Prospectus
Supplement dated ______________, are substantially accurate and fair.
7. We have participated in conferences with officers and other
representatives of the Company and representatives of the Underwriters at which
the contents of the Registration Statement and the Prospectus were discussed and
we have consulted with officers and other employees of the Company to inform
them of the disclosure requirements of the Securities Act. We have examined
various reports, records, contracts and other documents of the Company and
orders and instruments of public officials, which our investigation led us to
deem pertinent. In addition, we attended the due diligence meetings with
representatives of the Company and the closing at which the Company satisfied
the conditions contained in Section 7 of the Underwriting Agreement. We have
not, however, undertaken to make any independent review of the other records of
the Company which our investigation did not lead us to deem pertinent. As to
the statistical statements in the Registration Statement (which includes the
Incorporated Documents), we have relied solely on the officers of the Company.
We accordingly assume no responsibility for the accuracy or completeness of the
statements made in the Registration Statement except as stated above in regard
to the captions in the preceding paragraph. But such conferences, consultation,
examination and attendance disclosed to us no information with respect to such
other matters that gives us reason to believe that the Registration Statement
contained on the date the Registration Statement became effective, or the
Prospectus, contained on the date it was issued, or that the Registration
Statement or the Prospectus contains now, any untrue statement of a material
fact or omitted on said date or omits now to state a material fact required to
be stated therein or necessary to make the statements therein not misleading.
We are of the opinion that the Registration Statement (excepting the financial
statements incorporated therein by reference, as to which we express no opinion)
complies as to form in all material respects with all legal requirements. The
foregoing opinion is given on the basis that any statement contained in an
Incorporated Document shall be deemed not to be contained in the Registration
Statement or Prospectus if the statement has been modified or superseded by any
statement in a subsequently filed Incorporated Document or in the Registration
Statement or Prospectus.
We do not purport to express an opinion on any laws other than those
of the Commonwealth of Virginia, the State of Delaware, the State of New York
and the United States of America. This opinion may not be relied upon by, nor
may copies be delivered to, any person without our prior written consent.
Yours very truly,
MCGUIREWOODS LLP
IV-3
<PAGE>
SCHEDULE V
PROPOSED FORM OF OPINION
OF
GENERAL COUNSEL OF
CONSOLIDATED NATURAL GAS COMPANY
120 Tredegar Street
Richmond, VA 23219
Re: CONSOLIDATED NATURAL GAS COMPANY
Senior Debt Securities
[Insert Date]
[Name of Representative]
as Representative for the Underwriters
listed in Schedule I to the Underwriters Agreement
[Address of Representative]
Ladies and Gentlemen:
The arrangements for issuance of [insert description of Senior Debt
Securities] (the Senior Debt Securities), of Consolidated Natural Gas Company
(the Company) under an Indenture dated as of ___________, between the Company
and Bank One Trust Company, National Association, as trustee (the Trustee), (the
Indenture), and pursuant to an Underwriting Agreement dated ____________, by and
between the Company and the Underwriters listed on Schedule I as attached
thereto (the Underwriting Agreement), have been taken under my supervision as
Vice President and General Counsel of the Company. Terms not otherwise defined
herein have the meanings set forth in the Underwriting Agreement.
As Vice President and General Counsel of the Company, I have general
responsibility over the attorneys within the Company's Legal Department
responsible for rendering legal counsel to the Company regarding corporate,
financial, securities, and other matters. I am generally familiar with the
organization, business and affairs of the Company. I am also familiar with the
proceedings taken and proposed to be taken by the Company in connection with the
offering and sale of the Senior Debt Securities, and I have examined such
corporate records, certificates and other documents and such questions of the
law as I have
V-1
<PAGE>
considered necessary or appropriate for the purposes of this opinion. In
addition, I have responsibility for supervising lawyers who may have been asked
by me or others to review legal matters arising in connection with the offering
and sale of the Senior Debt Securities. Accordingly, some of the matters
referred to herein have not been handled personally by me, but I have been made
familiar with the facts and circumstances and the applicable law, and the
opinions herein expressed are my own or are opinions of others in which I
concur.
On this basis I am of the opinion that:
1. The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of Delaware, and has corporate
power and authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and to enter into and perform its
obligations under the Underwriting Agreement, the Senior Debt Securities and the
Indenture; and the Company is duly qualified as a foreign corporation to
transact business and is in good standing in each other jurisdiction in which
such qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to so qualify or
to be in good standing would not result in a Material Adverse Effect.
2. Each Significant Subsidiary of the Company has been duly
incorporated and is validly existing as a corporation in good standing under the
respective laws of the jurisdiction of its incorporation, has corporate power
and authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and 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 to so
qualify or to be in good standing would not result in a Material Adverse Effect.
3. The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
4. There are no actions, suits or proceedings pending or, to the best
of my knowledge, threatened, to which the Company or one of its subsidiaries is
a party or to which any of the Company's or any of its subsidiaries' properties
is subject other than any proceedings described in the Prospectus and
proceedings which I believe are not likely to have a material adverse effect on
the power or ability of the Company to perform its obligations under the
Underwriting Agreement, or to consummate the transactions contemplated thereby
or by the Prospectus.
V-2
<PAGE>
I am a member of the Bar of the Commonwealth of Virginia and, except
as to the opinion provided herein as to the due incorporation of the Company
under the laws of the State of Delaware, I do not purport to express an opinion
on any laws other than those of the Commonwealth of Virginia and the United
States of America. This opinion may not be relied upon by, nor may copies be
delivered to, any person without our prior written consent. I do not undertake
to advise you of any changes in the opinions expressed herein resulting from
matters that may hereinafter arise or that may hereinafter be brought to my
attention.
Yours very truly,
V-3
