SOUTH CAROLINA ELECTRIC & GAS COMPANY First Mortgage Bonds, 6.05% Series due January 15, 2038 UNDERWRITING AGREEMENT
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Exhibit
1.01
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SOUTH
CAROLINA ELECTRIC & GAS COMPANY
$250,000,000
First
Mortgage Bonds, 6.05% Series
due
January 15, 2038
January 7,
2008
BNY
Capital Markets, Inc.
Credit
Suisse Securities (USA) LLC
Xxxxxx
Xxxxxxx & Co. Incorporated
Each
Individually and Acting as Representatives for
the
Underwriters Named in Schedule A hereto
c/o
BNY
Capital Markets, Inc
One
Wall Street – 18th Floor
c/o
Credit Suisse Securities (USA) LLC
Xxxxxx
Xxxxxxx Xxxxxx
c/o
Morgan Xxxxxxx & Co. Incorporated
0000
Xxxxxxxx
Ladies
and Gentlemen:
The
undersigned South Carolina Electric
& Gas Company, a South Carolina corporation (the “Company”), addresses you
as the representatives (the “Representatives”) of each of the persons, firms and
corporations listed in Schedule A hereto (the “Underwriters”).
The
term “Representatives” as used
herein shall be deemed to mean the firms and/or corporations addressed
hereby. If there is only one firm or corporation to which this
Agreement (the “Agreement”) is addressed, such term shall be deemed to mean such
firm or corporation. If there are any Underwriters in addition to
yourselves, you represent that you have been authorized by each of the
Underwriters to enter into this Agreement on their behalf and to act for them
in
the manner herein provided in all matters relating to carrying out the
provisions of this Agreement. If there are no Underwriters other than
yourselves, the term “Underwriters” shall be deemed to mean the
Representatives. All obligations of the Underwriters hereunder are
several and not joint.
The
Company
hereby confirms its agreement with the several Underwriters as
follows:
1. Description
of the Bonds. The Company has authorized the issuance and sale of
$250,000,000 aggregate principal amount of its First Mortgage Bonds, 6.05%
Series due January 15, 2038 (the “Bonds”), to be issued under and secured by (i)
the Indenture, dated as of April 1, 1993 (the “Indenture”), made by the Company
to The Bank of New York Trust Company, N.A., successor to NationsBank of
Georgia, National Association, as trustee (the “Trustee”), and (ii) a Second
Supplemental Indenture from the Company to the Trustee (hereinafter called
the
“Supplemental Indenture”), dated as of June 15, 1993 (the Indenture as so
supplemented being hereinafter collectively referred to as the “Indenture as
Supplemented”). The Bonds are being issued under the Indenture as Supplemented
on the basis of property additions certified to the Trustee and made by the
Company the basis for such issuance. The Bonds shall be dated, shall
mature, shall bear interest, shall be payable and shall otherwise conform to
the
description thereof to be contained in the Disclosure Package relating to the
Bonds referred to in Section 2(c) hereof and the Prospectus relating to the
Bonds referred to in Section 2(a) hereof and to the provisions of the Indenture
as Supplemented. No amendment to the Indenture as Supplemented is to
be made prior to the Closing Date hereinafter referred to unless said amendment
is first approved by you.
2. Representations
and Warranties of the Company. The Company represents and
warrants to, and agrees with, each Underwriter that:
(a) The
Company has prepared and filed with the Securities and Exchange Commission
(the
“Commission”) a registration statement on Form S-3 (File No. 333-145208-01),
which contains a base prospectus (the “Base Prospectus”), to be used in
connection with the public offering and sale of the Bonds. Such
registration statement, as amended, including the financial statements, exhibits
and schedules thereto, at each time of effectiveness under the Securities Act
of
1933, as amended, and the rules and regulations promulgated thereunder
(collectively, the “Act”), including any required information deemed to be a
part thereof at the time of effectiveness pursuant to Rule 430B under the Act
or
the Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder (collectively, the “Exchange Act”), is called the
“Registration Statement.” Any preliminary prospectus supplement to
the Base Prospectus that describes the Bonds and the offering thereof and is
used prior to filing of the Prospectus is called, together with the Base
Prospectus, a “preliminary prospectus.” The term “Prospectus” shall
mean the final prospectus supplement relating to the Bonds, together with the
Base Prospectus, that is first filed pursuant to Rule 424(b) after the date
and
time that this Agreement is executed and delivered by the parties hereto (the
“Execution Time”). Any reference herein to the Registration
Statement, any preliminary prospectus or the Prospectus shall be deemed to
refer
to and include the documents incorporated by reference therein (the
“Incorporated Documents”); any reference to any amendment or supplement to any
preliminary prospectus or the Prospectus shall be deemed to refer to and include
any Incorporated Documents filed after the date of such preliminary prospectus
or Prospectus, as the case may be, under the Exchange Act, and incorporated
by
reference in such preliminary prospectus or Prospectus, as the case may be;
and
any reference to any amendment to the Registration Statement shall be deemed
to
refer to and include any annual report of the Company filed pursuant to Section
13(a) or 15(d) of the Exchange Act after the effective date of the Registration
Statement that is incorporated by reference in the Registration
Statement. All references in this Agreement to the Registration
Statement, a preliminary prospectus, the Prospectus, or any amendments or
supplements to any of the foregoing, shall include any copy thereof filed with
the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval
System (“XXXXX”).
(b) The
Registration
Statement has been prepared by the Company in conformity with the requirements
of the Act and the Trust Indenture Act of 1939, as amended, and the rules
and
regulations promulgated thereunder (the “Trust Indenture Act”). When
the Registration Statement became effective and at all times subsequent thereto
up to and on the Closing Date (hereinafter defined), (i) the Registration
Statement and Prospectus and any post-effective amendments or supplements
thereto contained and will contain all statements and information which are
required to be stated therein by the Act and the Trust Indenture Act and
in all
material respects, conformed and will conform to the requirements thereof;
and
(ii) neither the Registration Statement nor the Prospectus nor any
post-effective amendment or supplement thereto included or will include any
untrue statement of a material fact as omitted or will omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that the foregoing representations
and warranties shall not apply to information contained in or omitted from
the
Registration Statement or Prospectus or any such amendment or supplement
thereto
in reliance upon, and in conformity with, written information furnished to
the
Company by you, or by any Underwriter through you, specifically for use in
the
preparation thereof, or to any statements in or omissions from the Statement
of
Eligibility (Form T-1) of the Trustee or to any information relating to the
book-entry system of payments and transfers of the Bonds or the depository
therefor set forth under the caption “Book-Entry System” provided by The
Depository Trust Company. A copy of such Registration Statement and
any amendments thereto heretofore filed (including all exhibits except those
incorporated therein by reference) have heretofore been delivered to
you. The Company will file with the Commission any preliminary
prospectus and the Prospectus relating to the Bonds pursuant to Rule 424
under
the Act.
(c) The
term “Disclosure Package” shall mean (i) the Base Prospectus, including any
preliminary prospectus supplement, as amended or supplemented, (ii) the “issuer
free writing prospectuses” as defined in Rule 433 of the Act (each, an “Issuer
Free Writing Prospectus”), if any, identified in Schedule C hereto, (iii) any
other free writing prospectus that the parties hereto shall hereafter expressly
agree in writing to treat as part of the Disclosure Package and (iv) the Final
Term Sheet (as defined herein), which also shall be identified in Schedule
C
hereto. As of 7:30 pm (Eastern time) on the date of this
Agreement (the “Applicable Time”), the Disclosure Package did not contain an
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein,
in
the light of the circumstances under which they were made, not misleading;
provided, however, that the foregoing representations and warranties shall
not
apply to information contained in or omitted from the Prospectus, including
any
preliminary prospectus supplement, or any such amendment or supplement thereto
in reliance upon, and in conformity with, written information furnished to
the
Company by you, or by any Underwriter through you, specifically for use in
the
preparation thereof, or to any information relating to the book-entry system
of
payments and transfers of the Bonds or the depository therefor set forth under
the caption “Book-Entry System” provided by The Depository Trust
Company.
(d) At
the Execution Time (with such date being used as the determination date for
purposes of this sentence), the Company was and is a “well-known seasoned
issuer” as defined in Rule 405 of the Act.
(e) (i)
At the earliest time after the filing of the Registration Statement relating
to
the Bonds that the Company or another offering participant made a bona
fide offer (within the meaning of Rule 164(h)(2) of the Act) of the Bonds
and (ii) as of the Execution Time (with such date being used as the
determination date for purposes of this clause (ii)), the Company was not and
is
not an “ineligible issuer” (as defined in Rule 405 of the Act), without taking
account of any determination by the Commission pursuant to Rule 405 of the
Act
that it is not necessary that the Company be considered an “ineligible
issuer”.
(f) Neither
any Issuer Free Writing Prospectus nor the Final Term Sheet, as of their
respective issue dates and at all subsequent times during the Prospectus
Delivery Period (as defined herein) or until any earlier date that the Company
notified or notifies the Representatives as described in the next sentence,
did
not, does not and will not include any information that conflicted, conflicts
or
will conflict with the information contained in the Registration Statement,
the
Disclosure Package or the Prospectus, including any document incorporated by
reference therein that has not been superseded or modified. If at any
time following the issuance of an Issuer Free Writing Prospectus there occurred
or occurs an event or development as a result of which such Issuer Free Writing
Prospectus conflicted or would conflict with the information contained in the
Registration Statement, the Disclosure Package or the Prospectus, the Company
has promptly notified or will promptly notify the Representatives and has
promptly amended or supplemented or will promptly amend or supplement, at its
own expense, such Issuer Free Writing Prospectus to eliminate or correct such
conflict.
(g) The
Company has not distributed and will not distribute, prior to the later of
the
Closing Date and the completion of the Underwriters’ distribution of the Bonds,
any written offering material in connection with the offering and sale of the
Bonds other than a preliminary prospectus, the Prospectus, any Issuer Free
Writing Prospectus reviewed and consented to by the Representatives and included
in Schedule C hereto or the Registration Statement.
(h) The
Incorporated Documents, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects to the
requirements of the Exchange Act and the rules and regulations of the Commission
thereunder at that time, and none of such documents 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, in light of the
circumstances under which they were made, not misleading; and any further
documents so filed and incorporated by reference, when they become effective
or
are filed with the Commission, as the case may be, will conform in all material
respects to the requirements of the Exchange Act and the rules and regulations
of the Commission thereunder, and will 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, in light of the circumstances under
which they were made, not misleading.
(i) The
financial statements of the
Company incorporated by reference in the Disclosure Package and the Prospectus
fairly present the financial condition of the Company as of the dates indicated
and the results of operations and changes in financial position for the periods
therein specified; and said financial statements have been prepared in
accordance with generally accepted accounting principles, applied on a
consistent basis (except as otherwise noted in such financial statements)
throughout the periods involved. Deloitte & Touche LLP, who have
audited certain of such financial statements, as set forth in their report
with
respect to such financial statements,
are independent registered public accountants with respect to the Company
as
required by the Act and the rules and regulations of the Commission
thereunder.
(j) The
Company has been duly organized and is validly existing as a corporation under
the laws of the State of South Carolina; the Company has the corporate power
and
authority to own and operate the properties now owned by it and to carry on
its
business as now being carried on by it, as described in the Disclosure Package
and the Prospectus; and the Company is duly licensed or qualified to do business
as a foreign corporation in each jurisdiction which requires such licensing
or
qualification wherein it owns material properties or conducts material
business. The Company has no subsidiaries.
(k) This
Agreement has been duly authorized, executed and delivered by the
Company.
(l) The
Bonds
have been duly authorized and, when duly executed, authenticated and issued
as
provided in the Indenture as Supplemented and delivered pursuant to this
Agreement, will constitute valid and legally binding obligations of the Company
entitled to the security and benefits of the Indenture as Supplemented, will
be
secured equally and ratably with all other Bonds issued or to be issued under
the Indenture as Supplemented, and will conform to the description thereof
contained in the Disclosure Package and the Prospectus. The Indenture
as Supplemented has been duly qualified under the Trust Indenture Act and
has
been duly authorized, executed and delivered by the Company and is a valid
and
binding agreement of the Company, and constitutes a legally valid and directly
enforceable mortgage lien (except to the extent that enforcement of such
lien
may be limited by the effect of certain laws and judicial decisions upon
the
remedies provided in the Indenture as Supplemented; however, such limitations
do
not render the Indenture as Supplemented invalid as a whole, and legally
adequate rights and remedies nevertheless exist under the Indenture as
Supplemented and applicable law for pursuit of a claim under the Bonds and
for
the practical realization of the security and principal legal benefits provided
by the Indenture as Supplemented, and except as enforceability of such lien
may
be limited by bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors’ rights and by general equity
principles) upon the respective properties subject thereto (which properties
constitute substantially all of the electric utility properties of the Company)
subject only to Permitted Liens (as defined in the Indenture), and to liens,
if
any, existing or placed thereon at the time of acquisition thereof by the
Company and permitted by the Indenture as Supplemented, and to minor defects
and
irregularities customarily found in properties of like size and character
which
do not materially impair the use of the property affected thereby in the
operations of the business of the Company, and the Indenture as Supplemented
conforms to the description thereof contained in the Disclosure Package and
the
Prospectus.
(m) Except
as set forth
in the Disclosure Package and the Prospectus, since the respective most recent
dates as of which information is given in the Disclosure Package and the
Prospectus (exclusive of any amendments or supplements after the date hereof),
the Company has not incurred any liabilities or obligations, direct or
contingent, or entered into any transactions, not in the ordinary course
of
business, which are material to the Company, and there has not been any material
change in the capital stock or long-term debt of the Company, or any material
adverse change, or any development which the Company has reasonable cause
to
believe will involve a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, business, net worth or results
of
operations of the Company, from that set forth in the Disclosure Package
and the
Prospectus (exclusive of any amendments or supplements thereto subsequent
to the
date of this Agreement) (a “Material Adverse Effect”).
(n) Except
as set forth in the Disclosure Package and the Prospectus, there is not pending
or, to the knowledge of the Company, threatened, any action, suit or proceeding,
to which the Company is a party, before or by any court or governmental agency
or body, which might result in a Material Adverse Effect. There are
no contracts or documents of the Company that are required to be filed as
exhibits to the Registration Statement by the Act or by the rules and
regulations of the Commission thereunder which have not been so
filed.
(o) The
Company holds good and marketable title in fee simple, except as otherwise
stated in the Disclosure Package and the Prospectus, to all of the real property
referred to therein as being owned by it, free and clear of all liens and
encumbrances, except liens and encumbrances referred to in the Disclosure
Package and the Prospectus (or reflected in the financial statements included
therein) and liens and encumbrances which are not material in the aggregate
and
do not materially interfere with the conduct of the business of the Company
and
the properties referred to in the Disclosure Package and the Prospectus as
held
under lease by the Company are held by it under valid and enforceable leases
with such exceptions as do not materially interfere with the conduct of the
business of the Company.
(p)
[Intentionally omitted.]
(q) [Intentionally
omitted.]
(r) The
performance of this Agreement and the consummation of the transactions herein
contemplated will not result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any indenture, mortgage, deed
of
trust, note agreement or other agreement or instrument to which the Company
is a
party or by which it is bound or to which any of the property of the Company
is
subject, the Company’s Restated Articles of Incorporation, as amended, or
by-laws, or any statute, law, rule, regulation, order or decree of any court
or
governmental agency or body having jurisdiction over the Company or any of
its
properties; no consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation of the transactions
contemplated by this Agreement in connection with the issuance or sale of the
Bonds by the Company hereunder, except such as may be required under the Act,
the Trust Indenture Act or state securities laws and except for the approval
of
The Public Service Commission of South Carolina, all of which (except as may
be
required under state securities laws) have been obtained or will be obtained
prior to the Closing Date and are or will be in full force and effect; and
the
Company has full power and authority to authorize, issue and sell the Bonds
on
the terms and conditions herein set forth.
(s) The
Company is not, and after giving effect to the offering and sale of the Bonds
and the application of the proceeds thereof as described in the Disclosure
Package and the Prospectus, will not be, an “investment company” or a company
“controlled” by an “investment company” that is required to be registered under
the Investment Company Act of 1940, as amended.
(t) The
Company maintains systems of internal accounting controls sufficient to provide
reasonable assurance that transactions are executed in accordance with
management’s general or specific authorizations, transactions are recorded as
necessary to permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain asset accountability,
access to assets is permitted only in accordance with management’s general or
specific authorizations, and the recorded accountability for assets is compared
with the existing assets at reasonable intervals and appropriate action is
taken
with respect to any differences.
(u) Except
as set forth in the Disclosure Package and the Prospectus, since the end of
the
Company’s most recent audited fiscal year, there has been (i) no material
weakness in the Company’s internal control over financial reporting (whether or
not remediated) and (ii) no change in the Company’s internal control over
financial reporting that has materially affected, or is reasonably likely to
materially affect, the Company’s internal control over financial
reporting.
(v) The
Company maintains disclosure controls and procedures (as such term is defined
in
Rule 13a-15(e) under the Exchange Act) that comply with the requirements of
the
Exchange Act; such disclosure controls and procedures have been designed to
ensure that material information relating to the Company is made known to the
Company’s principal executive officer and principal financial officer by others
within those entities; and such disclosure controls and procedures are
effective.
(w) To
the best of its knowledge, the Company is in compliance in all material respects
with the applicable provisions of the Xxxxxxxx-Xxxxx Act of 2002 (the
“Xxxxxxxx-Xxxxx Act”) that are effective and the rules and regulations of the
Commission that have been adopted and are effective thereunder.
3. Purchase,
Sale and Delivery of the Bonds. On the basis of representations,
warranties and agreements herein contained, but subject to the terms and
conditions herein set forth, the Company agrees to issue and sell to the several
Underwriters named in Schedule A hereto, and each such Underwriter agrees,
severally and not jointly, to purchase from the Company at the purchase price
set forth in such Schedule B the principal amount of Bonds set forth opposite
the name of such Underwriter in such Schedule A.
The
closing of the transactions and
delivery of the documents contemplated hereby shall take place at the office,
date and time specified in Schedule B. The Bonds will be delivered by
the Company to you for the accounts of the several Underwriters through the
facilities of The Depository Trust Company against payment of the purchase
price
therefor by wire transfer in federal (same day) funds at the closing date and
time specified on Schedule B (or, if the New York and American Stock Exchanges
and commercial banks in The City of New York are not open on such day, the
next
day on which such exchanges and banks are open), or at such other time not
later
than eight full business days thereafter as you and the Company determine,
such
time being herein referred to as the “Closing Date.”
It
is understood that you, individually
and not as Representatives of the Underwriters, may (but shall not be obligated
to) make payment to the Company, on behalf of any Underwriter or Underwriters,
for the Bonds to be purchased by such Underwriter or
Underwriters. Any such payment by you shall not relieve any such
Underwriter or Underwriters of any of its or their obligations
hereunder.
4. Covenants. The
Company covenants and agrees with each Underwriter that:
(a) During
the period beginning on the Applicable Time and ending on the later of the
Closing Date or such date the Prospectus is no longer required by law to be
delivered in connection with sales by an Underwriter or dealer, including
circumstances where such requirement may be satisfied pursuant to Rule 172
of
the Act (the “Prospectus Delivery Period”), prior to amending or supplementing
the Registration Statement, the Disclosure Package or the Prospectus (including
any amendment or supplement through incorporation by reference of any report
filed under the Exchange Act), the Company shall furnish to the Representatives
for review a copy of each such proposed amendment or supplement; the Company
shall not file or use any such proposed amendment or supplement to which the
Representatives reasonably object (except for any amendment or supplement
through incorporation by reference of any report filed under the Exchange Act);
the Company will notify you promptly of any request by the Commission for the
amending or supplementing of the Registration Statement, the Disclosure Package
or the Prospectus or for additional information.
(b) During
the Prospectus Delivery Period, the Company will file promptly all reports
and
any definitive proxy or information statements required to be filed by the
Company with the Commission pursuant to the Exchange Act and comply as far
as it
is able with all requirements imposed upon it by the Act, as now and hereafter
amended, and by the rules and regulations of the Commission thereunder, as
from
time to time in force, so far as necessary to permit the continuance of sales
of
or dealings in the Bonds as contemplated by the provisions hereof and in the
Disclosure Package and the Prospectus.
(c) If,
during the Prospectus Delivery Period, any event or development shall occur
or
condition exist as a result of which the Disclosure Package or the Prospectus
as
then amended or supplemented would include any untrue statement of a 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
or then prevailing, as the case may be, not misleading, or if it shall be
necessary to amend or supplement the Disclosure Package or the Prospectus,
or to
file under the Exchange Act any document incorporated by reference in the
Disclosure Package or the Prospectus, in order to make the statements therein,
in the light of the circumstances under which they were made or then prevailing,
as the case may be, not misleading, or if in the opinion of the Representatives
it is otherwise necessary or advisable in connection with the distribution
of
the Bonds by the Underwriters to amend or supplement the Registration Statement,
the Disclosure Package or the Prospectus, or to file under the Exchange Act
any
document incorporated by reference in the Disclosure Package or the Prospectus,
or to file a new registration statement containing the Prospectus, in order
to
comply with law, including in connection with the delivery of the Prospectus,
the Company agrees to (i) notify the Representatives of any such event or
condition and (ii) promptly prepare (subject to Sections 4(a) and 4(e) hereof),
file with the Commission (and use its best efforts to have any amendment to
the
Registration Statement or any new registration statement declared effective)
and
furnish at its own expense to the Underwriters and to dealers, amendments or
supplements to the Registration Statement, the Disclosure Package or the
Prospectus, or any new registration statement, necessary in order to make the
statements in the Disclosure Package or the Prospectus as so amended or
supplemented, in the light of the circumstances then prevailing or under which
they were made, as the case may be, not misleading or so that the Registration
Statement, the Disclosure Package or the Prospectus, as amended or supplemented,
will comply with law. The Company will notify you, promptly after it
shall receive notice thereof, of the time when any post-effective amendment
to
the Registration Statement has become effective or any supplement to the
Disclosure Package or the Prospectus has been filed.
(d) The
Company will prepare a final term sheet containing only a description of the
Bonds, in a form approved by the Representatives and contained in
Schedule D hereto, and will file such term sheet pursuant to Rule 433(d)
under the Act within the time required by such rule (such term sheet, the “Final
Term Sheet”).
(e) The
Company represents that it has not made, and agrees that, unless it obtains
the
prior written consent of the Representatives, it will not make, any offer
relating to the Bonds that would constitute an Issuer Free Writing Prospectus
or
that would otherwise constitute a “free writing prospectus” (as defined in Rule
405 of the Act) required to be filed by the Company with the Commission or
retained by the Company under Rule 433 of the Act; provided that the prior
written consent of the Representatives shall be deemed to have been given in
respect to the Free Writing Prospectuses included in Schedule C
hereto. Any such free writing prospectus consented to by the
Representatives and the Company is hereinafter referred to as a “Permitted Free
Writing Prospectus”. The Company agrees that (i) it has treated and
will treat, as the case may be, each Permitted Free Writing Prospectus as an
Issuer Free Writing Prospectus, and (ii) has complied and will comply, as the
case may be, with the requirements of Rules 164 and 433 of the Act applicable
to
any Permitted Free Writing Prospectus, including in respect of timely filing
with the Commission, legending and record keeping. The Company
consents to the use by any Underwriter of a free writing prospectus relating
to
the Bonds that (a) is not an “issuer free writing prospectus” as defined in
Rule 433 of the Act, (b) is not a “free writing prospectus” which includes
“issuer information”, each as defined in Rule 433 of the Act, or
(c) notwithstanding the prior clause (b) of this sentence, contains only
(i) information describing the preliminary terms of the Bonds or their
offering, (ii) information permitted by Rule 134 under the Act or
(iii) information that describes the final terms of the Bonds or their
offering and that is included in the Final Term Sheet of the Company
contemplated in Section 4(d) hereof.
(f) The
Company will advise you, promptly after it shall receive notice or obtain
knowledge thereof, of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of any proceeding
for that purpose having been instituted or threatened by the Commission; and
it
will promptly use its best efforts to prevent the issuance of any stop order
or
to obtain its withdrawal if such a stop order should be issued.
(g) The
Company will use its best efforts, at the request of and in cooperation with
the
Representatives, to qualify the Bonds for sale under the securities laws of
such
jurisdictions as you reasonably designate and to continue such qualifications
in
effect so long as required for the distribution of the Bonds, except that the
Company shall not be required in connection therewith to qualify as a foreign
corporation or to execute a general consent to service of process in any
state. The Company will also arrange for the determination of the
Bonds’ eligibility for investment under the laws of such jurisdictions as you
reasonably request.
(h) The
Company has furnished or will furnish to the Underwriters, as soon as available,
copies of the Registration Statement (three of which will be signed and will
include all exhibits except those incorporated by reference), the Prospectus
(including all documents incorporated by reference therein but excluding
exhibits to such documents), any preliminary prospectus, any Issuer Free Writing
Prospectuses and all amendments and supplements to such documents, including
any
prospectus prepared to permit compliance with Section 10(a)(3) of the Act,
all
in such quantities as you may from time to time reasonably request.
(i) The
Company will make generally available to its security holders as soon as
practicable, but in any event not later than 15 months after the end of the
Company’s current fiscal quarter, an earnings statement (which need not be
audited) covering a 12-month period beginning after the effective date of the
Registration Statement which shall satisfy the provisions of Section 11(a)
of
the Act.
(j) So
long as any of the Bonds are outstanding, the Company agrees to furnish to
you,
and, upon request, to each of the other Underwriters, (i) as soon as they are
available, copies of all the reports (financial or other) and any definitive
proxy statements mailed to security holders or filed with the Commission and
(ii) from time to time such other information concerning the business and
financial condition of the Company as you may reasonably request.
(k) The
Company, whether or not the transactions contemplated hereunder are consummated
or this Agreement is prevented from becoming effective or is terminated under
the provisions of Section 9 hereof, will pay all costs and expenses incident
to
the performance of the obligations of the Company hereunder, including, without
limitation, the fees and expenses of the Company’s accountants and counsel for
the Company, all costs incident to the preparation, printing and filing under
the Act of the Registration Statement, the Prospectus, any preliminary
prospectus, any Issuer Free Writing Prospectus and all amendments and
supplements thereto, any fees charged by any investment rating agencies for
rating the Bonds, all fees and disbursements incurred by the Company and by
the
Underwriters in connection with the qualification of the Bonds under the laws
of
various jurisdictions as provided in Section 4(g) hereof and the determination
of their eligibility for investment under the laws of various jurisdictions
(including the cost of furnishing to the Underwriters memoranda relating thereto
and the reasonable fees and disbursements of counsel for the Underwriters in
connection therewith), the cost of furnishing to the Underwriters copies of
the
Registration Statement, the Prospectus, any preliminary prospectus, any Issuer
Free Writing Prospectus and each amendment and supplement thereto, in such
numbers as you may reasonably request, the costs and charges of the Trustee
and
of any depository in connection with a book-entry system of payments and
transfers, and the cost of preparing the Bonds. If the sale of the
Bonds provided for herein is not consummated by reason of any failure, refusal
or inability on the part of the Company to perform any agreement on its part
to
be performed, or because any other condition of the Underwriters’ obligation
hereunder required to be fulfilled by the Company is not fulfilled, the Company
will reimburse the several Underwriters for all reasonable out-of-pocket
disbursements (including fees and disbursements of counsel) incurred by the
Underwriters in connection with their investigation, preparing to market and
marketing the Bonds or in contemplation of performing their obligations
hereunder. The Company shall not in any event be liable to any of the
Underwriters for loss of anticipated profits from the transactions covered
by
this Agreement.
(l) The
Company will apply the net proceeds from the sale of the Bonds to be sold by
it
hereunder for the purposes set forth under “Use of Proceeds” in each of the
Disclosure Package and the Prospectus.
(m) The
Company will not for a period of 30 days after the commencement of the public
offering of the Bonds, without the prior written consent of the Representatives,
sell, contract to sell or otherwise dispose of any other of its First Mortgage
Bonds.
4A. Covenants
of the Underwriters. Each Underwriter, severally and not jointly,
represents that it has not made, and covenants and agrees that, unless it
obtains the prior written consent of the Company, it will not make, any offer
relating to the Bonds that would constitute an Issuer Free Writing Prospectus
or
that would otherwise constitute a “free writing prospectus” (as defined in Rule
405 of the Act) required to be filed by the Company with the Commission or
retained by the Company under Rule 433 of the Act; provided that the prior
written consent of the Company shall be deemed to have been given in respect
of
the Free Writing Prospectuses included in Schedule C
hereto. Notwithstanding anything to the contrary herein, no
Underwriter must obtain the prior written consent of the Company with respect
to
the use of a free writing prospectus relating to the Bonds that (a) is not
an “issuer free writing prospectus” as defined in Rule 433 of the Act, (b)
is not a “free writing prospectus” which includes “issuer information”, each as
defined in Rule 433 of the Act, or (c) notwithstanding the prior clause (b)
of this sentence, contains only (i) information describing the preliminary
terms of the Bonds or their offering, (ii) information permitted by Rule 134
under the Act or (iii) information that describes the final terms of the
Bonds or their offering and that is included in the Final Term Sheet of the
Company contemplated in Section 4(d) hereof.
5. Conditions
of Underwriters’ Obligations. The obligations of the several
Underwriters to purchase and pay for the Bonds, as provided herein, shall be
subject to the accuracy, as of the date hereof and the Closing Date (as if
made
on the Closing Date), of the representations and warranties of the Company
herein, to the performance by the Company of its obligations hereunder, and
to
the following additional conditions:
(a) The
Company shall have filed any preliminary prospectus and the Prospectus with
the
Commission (including the information required by Rule 430B under the Act)
in
the manner and within the time period required by Rule 424(b) under the Act;
or
the Company shall have filed a post-effective amendment to the Registration
Statement containing the information required by Rule 430B, and such
post-effective amendment shall have become effective.
(b) The
Final Term Sheet, and any other material required to be filed by the Company
pursuant to Rule 433(d) under the Act, shall have been filed with the Commission
within the applicable time periods prescribed for such filings under Rule
433.
(c) No
stop order suspending the effectiveness of the Registration Statement, or any
post-effective amendment to the Registration Statement, shall be in effect
and
no proceedings for that purpose shall have been instituted or, to the knowledge
of the Company or any Underwriter, threatened by the Commission; and any request
of the Commission for additional information (to be included in the Registration
Statement or the Prospectus or otherwise) shall have been complied with to
your
satisfaction.
(d) No
Underwriter shall have advised the Company that the Registration Statement,
the
Disclosure Package or the Prospectus, or any amendment or supplement thereto,
contains an untrue statement of fact which in your opinion is material or omits
to state a fact which in your opinion is material and is required to be stated
therein or is necessary to make the statements therein not
misleading.
(e) Except
as contemplated in the Disclosure Package and the Prospectus, subsequent to
the
respective dates as of which information is given in the Registration Statement,
the Disclosure Package and the Prospectus (exclusive of any amendments or
supplements thereto subsequent to the date of this Agreement), there shall
not
have been any change in the capital stock or long-term debt of the Company
or
any adverse change, or any development involving a prospective adverse change,
in the condition, financial or otherwise, or in the business, net worth or
results of operations of the Company from that set forth in the Disclosure
Package and the Prospectus (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement) that, in your judgment makes it
impractical or inadvisable to offer or deliver the Bonds on the terms and in
the
manner contemplated in the Disclosure Package and the Prospectus.
(f) On
the Closing Date, you shall have received the opinion of XxXxxx Law Firm, P.A.,
counsel for the Company, dated the Closing Date, to the effect
that:
(i) The
Company is validly existing as a corporation under the laws of the State of
South Carolina and has the corporate power to own and operate the properties
now
owned and proposed to be owned by it and to carry on its business as now carried
on and proposed to be carried on, in each case as described in the Disclosure
Package and the Prospectus.
(ii) The
Indenture as Supplemented has been duly authorized, executed and delivered
by
the Company and constitutes a valid and legally binding instrument enforceable
against the Company in accordance with its terms and the Indenture as
Supplemented has been qualified under the Trust Indenture Act.
(iii) [Intentionally
omitted.]
(iv) The
Bonds have been duly authorized by all necessary corporate action, have been
duly executed, authenticated, issued and delivered and constitute valid and
legally binding obligations of the Company enforceable against the Company
in
accordance with their terms and the terms of the Indenture as Supplemented,
are
entitled to the security and benefits of the Indenture as Supplemented and
are
secured equally and ratably with all other bonds issued under the Indenture
as
Supplemented.
(v) This
Agreement has been duly authorized, executed and delivered by the
Company.
(vi) The
Indenture as Supplemented and the Bonds conform in all material respects to
the
statements concerning them in the Disclosure Package and the
Prospectus.
(vii) The
documents incorporated by reference in the Disclosure Package and the Prospectus
(other than the financial statements and other financial information contained
therein, as to which such counsel need express no opinion), when they were
filed
with the Commission complied as to form in all material respects with the
requirements of the Exchange Act and the rules and regulations of the Commission
thereunder; and, based upon such counsel’s participation in conferences with
representatives of the Company and its accountants and participation in certain
prior financings of the Company, they do not believe that any of such documents,
when they were so filed, contained an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made when
such
documents were so filed, not misleading.
(viii) The
statements in any preliminary prospectus and the Prospectus under the captions
“Terms of the New Bonds” and “Description of the First Mortgage Bonds,” insofar
as such information purports to be descriptions of or summaries of the Bonds
and
the Indenture as Supplemented, fairly present the information purported to
be
shown.
(ix) The
Company has filed with the Commission a prospectus supplement relating to the
Bonds pursuant to and within the time period prescribed by the applicable
provisions of Rule 424 under the Act. The Company has filed with the
Commission the Final Term Sheet, and any other material used by or provided
to
the Company that is required to be filed by the Company pursuant to
Rule 433(d) under the Act, within the applicable time periods prescribed
for such filings under Rule 433. The Registration Statement has
become effective under the Act, and, to the knowledge of such counsel, no stop
order suspending the effectiveness of the Registration Statement or any
post-effective amendment of the Registration Statement is in effect and no
proceedings for that purpose have been instituted or, to the knowledge of such
counsel, are pending or contemplated under the Act and, based upon such
counsel’s participation in conferences with representatives of the Company and
its accountants and participation in certain prior financings of the Company,
they do not believe that (i) either the Registration Statement or any amendments
thereto, at the time the Registration Statement or such amendments became
effective and as of the Execution Time, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary in order to make the statements therein not misleading; (ii) the
Prospectus, as of its date or at the Closing Date contained an untrue statement
of a material fact or omitted 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; or (iii) the Disclosure Package, as of the Applicable
Time, contained any untrue statement of a material fact or omitted to
state any material fact necessary in order to make the statements therein,
in
the light of circumstances under which they were made, not misleading, and,
in
their opinion, the Registration Statement and the Prospectus, as of the
Execution Date (or the Registration Statement or Prospectus as amended or
supplemented by any amendment or further supplement thereto made by the Company
prior to the Closing Date), appear on their face to be appropriately responsive
in all material respects to the requirements of the Act, the Trust Indenture
Act
and the rules and regulations of the Commission under such acts (except that
no
belief need be expressed as to financial statements and other financial
information contained or incorporated by reference in the Registration
Statement, the Prospectus, the Disclosure Package or any amendments or
supplements thereto or as to the Trustee’s Statement of Eligibility on Form T-1
and, with respect to information relating to the book-entry system of payments
and transfers of the Bonds or the depository therefor set forth under the
caption “Book-Entry System” therein, such belief may be based on information
made available by The Depository Trust Company for the purpose of inclusion
in
the Base Prospectus).
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In
rendering said opinion, (i) counsel may rely upon the opinion of
Xxxxxxx
X. Xxxx, Xx., Xxxxxxx, delivered pursuant to paragraph (g), with
respect
to matters of title, property descriptions, recording fees and taxes
and
the filing, recordation and liens of the Indenture as Supplemented;
(ii)
counsel may state that the enforceability of the Indenture as Supplemented
and the Bonds is subject to applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance and other laws
affecting
the rights of creditors generally and general principles of equity;
and
(iii) counsel may state that although certain provisions of the Indenture
as Supplemented may not be enforceable in whole or in part, the inclusion
of such provisions does not render the Indenture as Supplemented
invalid
as a whole, and legally adequate rights and remedies nevertheless
exist
under the Indenture as Supplemented and applicable law for pursuit
of a
claim under the Bonds and for the practical realization of the principal
legal benefits and security provided by the Indenture as
Supplemented.
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(g) On
the Closing Date, you shall have received the opinion of Xxxxxxx X. Xxxx, Xx.,
Esquire, Senior Vice President, General Counsel and Assistant Secretary of
the
Company, dated the Closing Date, covering the matters set forth in clauses
(i)
to (ix), inclusive, of paragraph (f) of this Section and such other matters
incident to the transactions contemplated hereby as you may reasonably request,
and also to the effect of subsections (i) through (x) below, in each case
subject to such exceptions specified in such opinion with respect to the matters
referred to in clauses (i), (ii), (iii), (iv) and (v) of this paragraph (g)
as
such counsel may deem appropriate, which exceptions in the opinion of the
counsel rendering such opinion do not materially interfere with the maintenance
and operation by the Company of the properties now owned by it or with the
conduct by the Company of the business now carried on by it. In
rendering the opinion set forth in clause (i) of paragraph (f) counsel shall
also state that the Company is duly licensed or qualified in each jurisdiction
which requires such licensing or qualification wherein it owns material
properties or conducts material business.
(i) The
Company has fee title to all the real property (except (i) rights-of-way, water
rights and flowage rights, (ii) that electric transmission and electric and
gas
distribution lines are constructed principally on rights-of-way which are
maintained under or held by easement and (iii) that the fee ownership of the
lands upon which the Company’s Stevens Creek dam is situated may extend only to
the abutment sites on each side of the Savannah River) and has good and valid
title to all of the personal property described or referred to in the Indenture
as Supplemented as owned by it (except property heretofore released from or
conveyed subject to the liens thereof or retired in accordance with the
provisions thereof), subject to no liens or encumbrances other than (a)
Permitted Liens and to liens, if any, existing or placed thereon at the time
of
acquisition thereof by the Company and permitted by the Indenture as
Supplemented, (b) the lien of the Indenture as Supplemented and (c) the fact
that titles to certain properties are subject to reservations and encumbrances
such as are customarily encountered in the public utility business and which
do
not materially interfere with their use, and the descriptions of and references
to such real and personal property contained in the Indenture as Supplemented
are adequate for the purposes thereof. No notice has been given to
the Company by any governmental authority of any proceeding to condemn, purchase
or otherwise acquire any of the properties of the Company and, so far as such
counsel knows, no such proceeding is contemplated.
(ii) The
Indenture as Supplemented has been duly filed for recording and recorded, and
constitutes a legally valid and direct enforceable mortgage lien upon the
respective properties presently subject thereto subject only to Permitted
Liens.
(iii) [Intentionally
omitted.]
(iv) Except
as set forth in “Security” under “Description of the First Mortgage Bonds” in
any preliminary prospectus and the Prospectus, substantially all fixed electric
utility properties used or useful in the Company’s electric utility business
(other than those of the character not subject to the lien of the Indenture
as
Supplemented as aforesaid and properties heretofore released from or conveyed
subject to the lien thereof or retired in accordance with the provisions
thereof) acquired by the Company after the date of the Indenture, have become
subject to the lien thereof, subject, however, to Permitted Liens and to liens,
if any, existing or placed thereon at the time of the acquisition thereof by
the
Company and permitted by the Indenture as Supplemented.
(v) Except
as otherwise set forth in the Disclosure Package and the Prospectus, the Company
has such valid franchises, certificates of convenience and necessity, operating
rights, licenses, permits, consents, approvals, authorizations and/or orders
of
governmental bodies, political subdivisions or regulatory authorities, free
from
burdensome restrictions, as are necessary for the acquisition, construction,
ownership, maintenance and operation of the properties now owned by it and
the
conduct of the business now carried on by it as described in the Registration
Statement, the Disclosure Package and the Prospectus, and the Company is not
in
default or violation of any of the foregoing and is carrying on its business
in
accordance therewith and, to his knowledge, with all applicable federal, state
and other laws and regulations.
(vi) The
descriptions in the Registration Statement, the Disclosure Package and the
Prospectus of statutes, legal and governmental proceedings, contracts and other
documents are, to the best of his knowledge, accurate and fairly present the
information required to be shown therein, and such counsel does not know of
any
legal or governmental proceedings required to be described in the Disclosure
Package or the Prospectus which are not described as required, nor of any
contracts or documents of a character required to be described in the
Registration Statement, the Disclosure Package or the Prospectus or required
to
be incorporated by reference into the Disclosure Package or the Prospectus
or to
be filed as exhibits to the Registration Statement which are not described
or
incorporated by reference or filed as required.
(vii) An
order has been or orders have been entered by The Public Service Commission
of
South Carolina permitting the issuance and sale of the Bonds as contemplated
hereby, and no further authorization or consent of any public body or board
is
required for the issuance and sale by the Company of the Bonds as contemplated
hereby, except as may be required under the securities or blue sky laws of
any
state or jurisdiction.
(viii) The
consummation of the transactions contemplated herein and the fulfillment of
the
terms hereof and compliance by the Company with all terms and provisions of
the
Indenture as Supplemented will not result in a breach of any of the terms or
provisions of, or constitute a default under, any statute, indenture, mortgage,
deed of trust, note agreement or other agreement or instrument known to such
counsel to which the Company is a party or by which it is bound or to which
any
of the property of the Company is subject, or the Restated Articles of
Incorporation, as amended, or by-laws of the Company, or to his knowledge,
any
order, rule or regulation applicable to the Company of any court or of any
federal or state regulatory body or administrative agency or other governmental
body having jurisdiction over the Company or its property.
(ix) All
recording fees and taxes applicable to or in connection with the recording
of
the Indenture as Supplemented and all applicable taxes on or in connection
with
the issuance of the Bonds have been paid.
(x) After
due inquiry, such counsel does not know of any legal or governmental proceedings
pending or threatened to which the Company is a party or to which any of the
properties of the Company is subject that are required to be described in the
Registration Statement, the Disclosure Package or the Prospectus and are not
so
described or of any statutes, regulations, contracts or other documents that
are
required to be described in the Registration Statement, the Disclosure Package
or the Prospectus or to be filed or incorporated by reference as exhibits to
the
Registration Statement that are not described, filed or incorporated as
required.
In
giving
the opinion contemplated by clauses (ii) and (iii), counsel shall state what,
if
any, re-recording or re-filing of the Indenture as Supplemented is required
and
what, if any, further supplemental indentures or other instruments are required
to be executed, filed and/or recorded or notices given, in order to extend
the
lien of the Indenture as Supplemented to after-acquired property, or
to maintain such lien with respect to future advances. Furthermore,
in rendering said opinion, (i) counsel may state that the enforceability of
the
Indenture as Supplemented and the Bonds, and the enforceability of the lien
of
the Indenture as Supplemented, are subject to applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance and other laws affecting
the
rights of creditors generally and general principles of equity and (ii) counsel
may state that although certain provisions of the Indenture as Supplemented
may
not be enforceable in whole or in part, the inclusion of such provisions does
not render the Indenture as Supplemented invalid as a whole, and legally
adequate rights and remedies nevertheless exist under the Indenture as
Supplemented and applicable law for pursuit of a claim under the Bonds and
for
the practical realization of the principal legal benefits and security provided
by the Indenture as Supplemented.
(h) On
the Closing Date, you shall have received from Xxxxxxxx Xxxxxxx LLP, counsel
for
the several Underwriters, such opinion or opinions with respect to the
incorporation of the Company, the validity of the Bonds, the Registration
Statement, the Disclosure Package, the Prospectus and other related matters
as
you may reasonably request, and such counsel shall have received such papers
and
information as they may reasonably request to enable them to pass upon such
matters. In rendering their opinion, such counsel may rely upon the
opinion of Xxxxxxx X. Xxxx, Xx., Xxxxxxx, referred to above as to all matters
governed by South Carolina law.
(i) On
or prior to the date hereof, you shall have received a letter from Deloitte
& Touche LLP, dated the date of the execution and delivery of this
Agreement, and specifying procedures completed not more than three business
days
prior to the date of the execution and delivery of this Agreement, addressed
to
you and in form and substance satisfactory to you, (1) confirming that they
are
independent accountants with respect to the Company as required by the Act
and
the rules and regulations of the Commission thereunder and (2) with respect
to
the accounting, financing, or statistical information (which is limited to
accounting, financial or statistical information derived from the general
accounting records of the Company) contained in the Registration Statement
or
incorporated by reference therein, and containing statements and information
of
the type ordinarily included in accountants’ SAS 72, as amended by SAS 86,
“Comfort Letters” to underwriters, with respect to the financial statements and
certain financial information contained in or incorporated by reference into
the
Disclosure Package and the Prospectus, including any pro forma financial
information. At the Closing Date, you shall have received a letter
from Deloitte & Touche LLP, dated the date of its delivery, which shall
reaffirm and, if necessary, update, on the basis of a review in accordance
with
the procedures set forth in the letter from the Accountants, during the period
from the date of the letter referred to in the prior sentence to a date
(specified in the letter) not more than three business days prior to the Closing
Date.
(j) On
the Closing Date, you shall have received from the Company a certificate, signed
by its Chairman, President or a Vice President and by its principal financial
or
accounting officer, dated the Closing Date, to the effect that, to the best
of
their knowledge based on reasonable investigation:
(i) the
representations and warranties of the Company in this Agreement are true and
correct in all material respects, as if made on and as of the Closing Date,
and
the Company has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied on or prior to the Closing
Date;
(ii) no
stop order suspending the effectiveness of the Registration Statement, or any
post-effective amendment to the Registration Statement, shall be in effect
and
no proceedings for that purpose shall have been instituted or threatened by
the
Commission; and
(iii) the
Registration Statement and the Prospectus, and any amendments or supplements
thereto, contain all statements and information required to be included therein;
the Registration Statement or any amendments thereto, at the time the
Registration Statement or such amendments became effective and at the Execution
Time, did not contain an untrue statement of a material fact and did not omit
to
state a material fact required to be stated therein or necessary in order to
make the statements therein not misleading; the Prospectus, as of its date
and
at the Closing Date did not and does not contain an untrue statement of a
material fact and did not and does not 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 Disclosure Package, as of the
Applicable Time, did not contain any untrue statement of a material fact and
did
not 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 (provided, however, that in each case, no representation is made,
as
applicable, as to any statements in or omissions from the Statement of
Eligibility (Form T-1) of the Trustee or to any information relating to the
book-entry system of payments and transfers of the Bonds or the depository
therefor set forth under the caption “Book-Entry System” provided by The
Depository Trust Company); and, since the date hereof there has occurred no
event required to be set forth in an amended or supplemented prospectus which
has not been so set forth and there has been no document required to be filed
under the Exchange Act and the rules and regulations of the Commission
thereunder and which upon such filing would be deemed to be incorporated by
reference in the Disclosure Package and the Prospectus, which has not been
so
filed.
(k) The
Company shall have furnished to you such further certificates and documents
as
you shall have reasonably requested.
(l) There
shall not have occurred after the date hereof any downgrading, nor shall any
notice have been given of any intended or potential downgrading or of any review
for a possible change that does not indicate the direction of the possible
change, in the rating accorded any of the Company’s securities by any
“nationally recognized statistical rating organization,” as such term is defined
for purposes of Rule 436(g)(2) under the Act.
All
such opinions, certificates,
letters and other documents will be in compliance with the provisions hereof
only if they are satisfactory in form and substance to you. The
Company will furnish you with such conformed copies of such opinions,
certificates, letters and other documents as you shall reasonably
request. In giving the opinions contemplated by paragraphs (f), (g)
and (h) of this Section 5, counsel need not express any opinion either as to
matters of Georgia law, including the enforceability of the Indenture as
Supplemented thereunder, and may rely upon certificates of state officials
as to
the Company’s existence and upon certificates of officers of the Company as to
matters of fact relevant to such opinions and may assume (i) that the Bonds
have
been executed on behalf of the Company by the manual or facsimile signatures
of
the Chairman of the Board, the President, any Vice President, the Treasurer
or
Controller and the Secretary or an Assistant Secretary of the Company and have
been duly authenticated by the Trustee and (ii) that the signatures on all
documents examined by them are genuine.
6. Indemnification
and Contribution.
(a) The
Company will indemnify and hold harmless each Underwriter, its directors,
officers, agents and each person, if any, who controls any Underwriter within
the meaning of either Section 15 of the Act or Section 20 of the Exchange Act
from and against any losses, claims, damages or liabilities, joint or several,
to which such Underwriter, director, officer, agent or controlling person may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based
upon (i) any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, or any amendment thereto, including
any
information deemed to be a part thereof pursuant to Rule 430B under the Act,
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
(ii) any untrue statement or alleged untrue statement of a material fact
contained in any preliminary prospectus, the Disclosure Package 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, and will reimburse each Underwriter, director, officer, agent or
controlling person for any legal or other expenses reasonably incurred by it
in
connection with investigating or defending against such loss, claim, damage,
liability or action; provided, however, that the Company shall not be liable
in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in the Registration Statement, any
preliminary prospectus or the Prospectus or any such amendment or supplement,
in
reliance upon and in conformity with written information furnished to the
Company by you, or by any Underwriter through you, specifically for use in
the
preparation thereof. The indemnity agreement set forth in this
Section 6(a) shall be in addition to any liabilities that the Company may
otherwise have.
(b) Each
Underwriter severally and not jointly will indemnify and hold harmless the
Company, its directors, its officers who sign the Registration Statement and
each person, if any, who controls the Company within the meaning of either
Section 15 of the Act or Section 20 of the Exchange Act, against any losses,
claims, damages or liabilities to which the Company may become subject, under
the Act or otherwise, insofar as such losses, claims, damages or liabilities
(or
actions in respect thereof) arise out of or are based upon (i) 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 (ii) any untrue statement
or
alleged untrue statement of a material fact contained in any preliminary
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, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in the Registration Statement, any preliminary
prospectus or the Prospectus or any such amendment or supplement, in reliance
upon and in conformity with written information furnished to the Company by
you,
or by such Underwriter through you, specifically for use in the preparation
thereof; and will reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or defending
against any such loss, claim, damage, liability or action. The
indemnity agreement set forth in this Section 6(b) shall be in addition to
any
liabilities that each Underwriter may otherwise have.
(c) Promptly
after receipt by an indemnified party under subsection (a) or (b) above of
notice of the commencement of any action, such indemnified party shall, if
a
claim in respect thereof is to be made against the indemnifying party under
such
subsection, notify the indemnifying party in writing of the commencement
thereof; but the omission so to notify the indemnifying party shall not relieve
it from any liability which it may have to any indemnified party otherwise
than
under such subsection. In case any such action shall be brought
against any indemnified party, and it shall notify the indemnifying party of
the
commencement thereof, the indemnifying party shall be entitled to participate
in
and, to the extent that it shall wish, jointly with any other indemnifying
party, similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party, and, after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be liable to such indemnified party
under such subsection for any legal or other expenses subsequently incurred
by
such indemnified party in connection with the defense thereof other than
reasonable costs of investigation. The indemnified party will have
the right to employ its own counsel in any such action, but the fees, expenses
and other charges of such counsel will be at the expense of such indemnified
party unless (1) the employment of counsel by the indemnified party has been
authorized in writing by the indemnifying party, (2) the indemnified party
has
reasonably concluded (based on advice of counsel) that there may be legal
defenses available to it or other indemnified parties that are different from
or
in addition to those available to the indemnifying party, (3) a conflict or
potential conflict exists (based on advice of counsel to the indemnified party)
between the indemnified party and the indemnifying party (in which case the
indemnifying party will not have the right to direct the defense of such action
on behalf of the indemnified party) or (4) the indemnifying party has not in
fact employed counsel to assume the defense of such action within a reasonable
time after receiving notice of the commencement of the action, in each of which
cases the reasonable fees, disbursements and other charges of counsel will
be at
the expense of the indemnifying party or parties. It is understood
that the indemnifying party or parties shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
reasonable fees, disbursements and other charges of more than one separate
firm
admitted to practice in such jurisdiction at any one time for all such
indemnified party or parties. All such fees, disbursements and other
charges will be reimbursed by the indemnifying party promptly as they are
incurred. An indemnifying party will not be liable for any settlement
of any action or claim effected without its written consent (which consent
will
not be unreasonably withheld). No indemnifying party shall, without
the prior written consent of each indemnified party, settle or compromise or
consent to the entry of any judgment in any pending or threatened claim, action
or proceeding relating to the matters contemplated by this Section 6 (whether
or
not any indemnified party is a party thereto), unless such settlement,
compromise or consent includes an unconditional release of each indemnified
party from all liability arising or that may arise out of such claim, action
or
proceeding.
(d) If
the indemnification provided for in this Section 6 is unavailable under
subsection (a) or (b) above to a party that would have been an indemnified
party
under subsection (a) or (b) above (“Indemnified Party”) in respect of any
losses, claims, damages or liabilities (or actions in respect thereof) referred
to therein, then each party that would have been an indemnifying party
thereunder (“Indemnifying Party”) shall, in lieu of indemnifying such
Indemnified Party, 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
benefits received by the Company on the one hand and the Underwriters on the
other from the offering of the Bonds. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law or if the Indemnified Party failed to give the notice required under
subsection (c) above, then each Indemnifying Party shall contribute to such
amount paid or payable by such Indemnified Party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), 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 shall
be deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the Underwriters, in each
case as set forth in the table on the cover page of the Prospectus which is
filed pursuant to Rule 424 under the Act referred to in Section 2(a)
hereof. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material
fact
or alleged omission to state a material fact relates to information supplied
by
the Company or 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 subsection (d) 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
subsection (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 subsection (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 (which
shall
be limited as provided in subsection (c) above if the Indemnifying Party has
assumed the defense of any such action in accordance with the provisions
thereof). Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the
underwriting discounts received by it. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters’ obligations in this subsection
(d) to contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The
obligations of the Company under this Section 6 shall be in addition to any
liability which the Company may otherwise have and shall extend, upon the same
terms and conditions, to each person, if any, who controls any Underwriter
within the meaning of the Act; and the obligations of the Underwriters under
this Section 6 shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each director of the Company, to each officer of the Company
who
has signed the Registration Statement and to each person, if any, who controls
the Company within the meaning of the Act.
7. Representations
and Agreements to Survive Delivery. All representations, warranties and
agreements of the Company herein or in certificates delivered pursuant hereto,
and the agreements contained in Section 4A hereto and the indemnity and
contribution agreements contained in Section 6 hereto of the several
Underwriters, shall remain operative and in full force and effect regardless
of
any investigation made by or on behalf of any Underwriter or any controlling
persons, or the Company or any of its officers, directors or any controlling
persons and shall survive delivery of the Bonds to the Underwriters
hereunder.
8. Substitution
of Underwriters.
(a) If
any Underwriter or Underwriters shall fail to take up and pay for the principal
amount of Bonds agreed by such Underwriter or Underwriters to be purchased
hereunder, upon tender of such Bonds in accordance with the terms hereof, and
the principal amount of Bonds not purchased does not aggregate more than 10%
of
the aggregate principal amount of the Bonds, the remaining Underwriters shall
be
obligated to take up and pay for (in proportion to their respective commitments
hereunder except as may otherwise be determined by you) the Bonds which any
withdrawing or defaulting Underwriters agreed but failed to purchase; however,
if such Bonds not purchased aggregate more than 10% of the aggregate principal
amount of the Bonds, the remaining Underwriters shall have the right, but shall
not be obligated, to take up and pay for (in such proportions as shall be
determined by you) the Bonds which the defaulting Underwriter or Underwriters
agreed but failed to purchase. If such remaining Underwriters do not,
at the Closing Date, take up and pay for the Bonds which the defaulting
Underwriter or Underwriters agreed but failed to purchase, the time for delivery
of the Bonds shall be extended to the next business day to allow the several
Underwriters the privilege of substituting within 24 hours (including
non-business hours) another underwriter or underwriters satisfactory to the
Company. If no such underwriter or underwriters shall have been
substituted, as aforesaid, the time for delivery of the Bonds may, at the option
of the Company, be again extended to the next following business day, if
necessary, to allow the Company the privilege of finding within 24 hours
(including non-business hours) another underwriter or underwriters, satisfactory
to you, to purchase the Bonds which the defaulting Underwriter or Underwriters
agreed but failed to purchase. If the remaining Underwriters shall
not take up and pay for all such Bonds agreed to be purchased by the defaulting
Underwriters, or substitute another underwriter or underwriters as aforesaid,
and the Company shall not find or shall not elect to seek another underwriter
or
underwriters for such Bonds as aforesaid, then this Agreement shall
terminate. In the event of any such termination the Company shall not
be under any liability to any Underwriter (except to the extent provided in
Section 4(k) and in Section 6 hereof), nor shall any Underwriter (other than
an
Underwriter who shall have failed, otherwise than for some reason permitted
under this Agreement, to purchase the principal amount of Bonds agreed by such
Underwriter to be purchased hereunder) be under any liability to the Company
(except to the extent provided in Section 6 hereof).
(b) If
the remaining Underwriters or substituted underwriters take up the Bonds of
the
defaulting Underwriter or Underwriters as provided in this Section, (i) the
Company shall have the right to postpone the time of delivery for a period
of
not more than seven full business days, in order to effect any changes which
may
be made necessary thereby in the Registration Statement, the Disclosure Package
or the Prospectus, or in any other documents or arrangements, and the Company
agrees promptly to file any amendments or supplements to the Registration
Statement, the Disclosure Package or the Prospectus which may be made necessary
thereby, and (ii) the respective principal amounts of Bonds to be purchased
by
the remaining Underwriters or substituted underwriters shall be taken as the
basis of their respective underwriting obligations for all purposes of this
Agreement. A substituted underwriter hereunder shall become an
Underwriter for all purposes of this Agreement.
(c) Nothing
herein shall relieve a defaulting Underwriter from liability for its
default.
9. Effective
Date of this Agreement and Termination.
(a) This
Agreement shall become effective upon your accepting it in the manner indicated
below.
(b) You,
as Representatives of the several Underwriters, shall have the right to
terminate this Agreement by giving notice as hereinafter specified at any time
at or prior to the Closing Date if (i) the Company shall have failed, refused
or
been unable, at or prior to the Closing Date, to perform any material agreement
on its part to be performed hereunder, (ii) any other condition of the
Underwriters’ obligations hereunder required to be fulfilled by the Company is
not fulfilled, (iii) trading on The New York Stock Exchange or the American
Stock Exchange shall have been wholly suspended, (iv) minimum or maximum prices
for trading shall have been fixed, or maximum ranges for prices for securities
shall have been required, on The New York Stock Exchange or the American Stock
Exchange, by The New York Stock Exchange or the American Stock Exchange or
by
order of the Commission or any other governmental authority having jurisdiction,
(v) a banking moratorium shall have been declared by Federal or New York
authorities, or (vi) an outbreak or escalation of major hostilities in which
the
United States is involved, a declaration of war by Congress, any other
substantial national or international calamity or crisis, a default in payment
when due of interest on or principal of any debt obligations of, or the
institution of proceedings under the Federal bankruptcy laws by or against,
any
State of the United States, a material disruption in settlement or clearance
procedures, or any other event or occurrence of a similar character shall have
occurred since the execution of this Agreement which, in your judgment, makes
it
impractical or inadvisable to proceed with the completion of the sale of and
payment for the Bonds. Any such termination shall be without
liability of any party to any other party except that the provisions of Section
4(k) and Section 6 hereof shall at all times be effective.
(c) If
you elect to prevent this Agreement from becoming effective or to terminate
this
Agreement as provided in this Section, the Company shall be notified promptly
by
you by telephone or telegram, confirmed by letter. If the Company
elects to prevent this Agreement from becoming effective, you shall be notified
promptly by the Company by telephone or telegram, confirmed by
letter.
10. Notices.
All notices or communications hereunder, except as herein otherwise specifically
provided, shall be in writing and, if sent to you, shall be mailed, delivered
or
telegraphed and confirmed to you at the addresses designated on Schedule B,
or
if sent to the Company, shall be mailed, delivered or telegraphed and confirmed
to Company at 0000 Xxxx Xxxxxx, Xxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention:
Secretary. Notice to any Underwriter pursuant to Section 6 shall be
mailed, delivered or telegraphed and confirmed to such Underwriter in care
of
the Representatives at the addresses designated in Schedule B. Any
party to this Agreement may change such address for notices by sending to the
parties to this agreement written notice of a new address for such
purpose.
11. Parties. This
Agreement shall inure to the benefit of and be binding upon the several
Underwriters, the Company and their respective successors and
assigns. Nothing expressed or mentioned in this Agreement is intended
or shall be construed to give any person or corporation, other than the parties
hereto and their respective successors and assigns and the controlling persons,
officers and directors referred to in Section 6, 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 being
intended to be and being for the sole and exclusive benefit of the parties
hereto and their respective successors and assigns and said controlling persons
and said officers and directors and for the benefit of no other person or
corporation. No purchaser of any of the Bonds from any Underwriter
shall be construed a successor or assign merely by reason of such
purchase.
In
all
dealings with the Company under this Agreement, you shall act on behalf of
each
of the several Underwriters, and any action under this Agreement taken by you
will be binding upon all Underwriters.
12. No
Advisory or Fiduciary Responsibility. The Company
acknowledges and agrees that: (i) the purchase and sale of the Bonds pursuant
to
this Agreement, including the determination of the public offering price of
the
Bonds 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, and the Company is capable of evaluating and
understanding and understands and accepts the terms, risks and conditions of
the
transactions contemplated by this Agreement; (ii) in connection with each
transaction contemplated hereby and the process leading to such transaction
each
Underwriter is and has been acting solely as a principal and is not the
financial advisor, agent or fiduciary of the Company or its affiliates,
stockholders, creditors or employees or any other party; (iii) no Underwriter
has assumed or will assume an advisory, agency or fiduciary responsibility
in
favor of the Company with respect to any of the transactions 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; (iv) the several 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 that the several Underwriters have no
obligation to disclose any of such interests by virtue of any advisory, agency
or fiduciary relationship; and (v) 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.
This
Agreement supersedes all prior agreements and understandings (whether written
or
oral) between the Company and the several Underwriters, or any of them, with
respect to the subject matter hereof. The Company hereby waives and
releases, to the fullest extent permitted by law, any claims that the Company
may have against the several Underwriters with respect to any breach or alleged
breach of agency or fiduciary duty.
13. Applicable
Law. The Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
If
the foregoing correctly sets forth
the understanding between the Company and the several Underwriters, please
so
indicate in the space provided below for that purpose, whereupon this letter
shall constitute a binding agreement between the Company and the several
Underwriters.
Very
truly
yours,
SOUTH
CAROLINA
ELECTRIC & GAS COMPANY
By:
/s/Xxxx
X.
Xxxxxx
Its: Treasurer
The
foregoing agreement is hereby
confirmed
and accepted, as of the
date
first above written.
BNY
CAPITAL MARKETS, INC.
acting
individually and as Representative
of
the
Underwriters named in Schedule A hereto
By: /s/Xxxxxx
Xxxxxxx
Name: Xxxxxx
Xxxxxxx
Title: Managing
Director
CREDIT
SUISSE SECURITIES (USA) LLC
acting
individually and as Representative
of
the
Underwriters named in Schedule A hereto
By: /s/Xxxxxx
X. Xxxxx
Name:
Xxxxxx X. Xxxxx
Title: Managing
Director
XXXXXX
XXXXXXX & CO. INCORPORATED
acting
individually and as Representative
of
the
Underwriters named in Schedule A hereto
By: /s/Xxxx
Xxxxxxxxxxx
Name: Xxxx
Xxxxxxxxxxx
Title: Executive
Director
SCHEDULE
A
UNDERWRITERS
|
Name
of Underwriter
|
Principal
Amount of Bonds
To
be Purchased
|
|
BNY
Capital Markets, Inc.
Credit
Suisse Securities (USA) LLC
Xxxxxx
Xxxxxxx & Co. Incorporated
Mizuho
Securities USA Inc.
|
$ 75,000,000
75,000,000
75,000,000
25,000,000
|
|
Total
|
$ 250,000,000
|
A-1
SCHEDULE
B
Title
of
Bonds: First Mortgage Bonds, 6.05% Series due January 15,
2038
Aggregate
Principal Amount of the Bonds: $250,000,000
|
Initial
Price to Public:
|
99.903%
of the Principal Amount of the Bonds plus accrued interest, if any
from
January 14, 2008.
|
Initial
Purchase Price to be Paid by the Underwriters:
99.028%
of the Principal Amount of the Bonds plus accrued interest, if any from January
14, 2008.
Closing
Date: January 14,
2008 at 10:00 AM
Closing
Location: XxXxxx Law Firm, P.A.
0000
Xxxxxxx Xxxxxx, 00xx Floor
Columbia,
South
Carolina 29201
Address
for Notices to the Underwriters:
BNY
Capital Markets, Inc
One
Wall
Street – 18th
Floor
New
York,
New York 10286
Attention:
Debt Capital Markets
Facsimile: (000)
000-0000
Cc: Chief
Compliance Officer
Facsimile: (000)
000-0000
Credit
Suisse Securities (USA) LLC
Xxxxxx
Xxxxxxx Xxxxxx
New
York,
New York 10010
Attention:
LCD-IBD
Facsimile: (000)
000-0000
Xxxxxx
Xxxxxxx & Co. Incorporated
0000
Xxxxxxxx
New
York,
New York 10036
Attention: Investment
Banking Division
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
B-1
With
a copy of any notice also sent
to:
Xxxxxxxx
Xxxxxxx LLP
000
Xxxxxxx Xxxx Xxxxxx, Xxxxx
0000
Virginia
Beach,
Virginia 23462
Attention: Xxxxx
X.
Xxxxxxx
Facsimile
No.: 000-000-0000
B-2
SCHEDULE
C
Final
Term Sheet, dated January 7, 2008
C-1
SCHEDULE
D
South
Carolina Electric and Gas Company
FINAL
TERM SHEET
Dated: January
7, 2008
Issuer: South
Carolina Electric and Gas Company
|
Size:
|
$250,000,000
|
|
Maturity:
|
January
15, 2038
|
|
Coupon
(Interest Rate):
|
6.05%
|
|
Yield
to Maturity:
|
6.057%
|
|
Spread
to Benchmark Treasury:
|
172
basis points (1.72%)
|
|
Benchmark
Treasury:
|
4.75%
U.S. Treasury due February 15, 2037
|
|
Benchmark
Treasury Price and Yield:
|
106-25
/ 4.337%
|
|
Interest
Payment Dates:
|
January
15 and July 15, commencing July 15,
2008
|
|
Redemption
Provision:
|
Make
whole call at Adjusted Treasury Rate +30 basis points
(0.30%)
|
|
Price
to Public:
|
99.903%
|
|
Settlement
Date:
|
January
14, 2008
|
The
issuer has filed a registration statement (including a prospectus) with the
SEC
for the offering to which this 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 get these documents for free by
visiting XXXXX on the SEC Web site at
xxx.xxx.xxx. Alternatively, the issuer, any underwriter or any
dealer participating in the offering will arrange to send you the prospectus
if
you request it by calling:
BNY
Capital Markets,
Inc. – 0-(000)
000-0000 (toll free)
Credit
Suisse Securities (USA)
LLC – 1-(800)
221-1037 (toll free)
Xxxxxx
Xxxxxxx & Co.
Incorporated – 0-(000)
000-0000 (toll free)
Any
disclaimers or other notices that may appear below are not applicable to this
communication and should be disregarded. Such disclaimers or other
notices were automatically generated as a result of this communication being
sent via Bloomberg or another email system.
D-1
