Exhibit 1.01
SOUTH CAROLINA ELECTRIC & GAS COMPANY
First Mortgage Bonds, % Series due
UNDERWRITING AGREEMENT
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 $ principal amount of its First Mortgage Bonds, % Series due (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,
successor to NationsBank of Georgia, National Association, as trustee (the
"Trustee"), and (ii) a 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 also entitled to the benefit of
a like principal amount of the Company's First and Refunding Mortgage Bonds (the
"Class A Bonds"), issued or to be issued under the Company's Indenture dated as
of January 1, 1945, as supplemented (the "Class A Mortgage"), to X X Xxxxxx
Xxxxx Bank, successor to Central Hanover Bank and Trust Company, as trustee,
delivered to and held by the Trustee under the Indenture as Supplemented. The
Class A Mortgage constitutes, subject to certain exceptions, a first mortgage
lien on substantially all of the public utility properties of the Company. 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
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) Registration statements (File Nos. and 333-65460) on Form
S-3 with respect to the Bonds, including a prospectus, have been
prepared by the Company in conformity with the requirements of the
Securities Act of 1933, as amended (the "Act"), the Trust Indenture Act
of 1939, as amended (the "Trust Indenture Act"), and the rules and
regulations of the Securities and Exchange Commission (the
"Commission") under such Acts, and have been filed with and declared
effective by the Commission. Copies of such registration statements 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 or mail for filing to the Commission
a prospectus supplement relating to the Bonds pursuant to Rule 424
under the Act. The registration statements when they became effective
and as they may be amended as of the date of this Agreement are
hereafter collectively referred to as the "Registration Statement" and
the prospectus as supplemented including all documents incorporated
therein by reference is hereafter referred to as the "Prospectus." If
the Company files any documents pursuant to Sections 13 or 14 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") after
the time the Registration Statement became effective and prior to the
termination of the offering of the Bonds by the Underwriters, which
documents are deemed to be incorporated by reference in the Prospectus,
the term "Prospectus," unless the context otherwise indicates or
requires, shall refer to said Prospectus as supplemented by the
documents so filed from and after the time said documents are filed
with the Commission.
(b) The documents incorporated by reference in the Prospectus,
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, 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 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 not misleading.
(c) When the Registration Statement became effective and at
all times subsequent thereto up to and at 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, the Trust Indenture Act and the rules and
regulations of the Commission under such Acts, 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 or 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 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 or to any statements in or omissions from
the Statement of Eligibility (Form T-1) of the Trustee.
(d) The financial statements of the Company incorporated by
reference in 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
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
public accountants with respect to the Company as required by the Act
and the rules and regulations of the Commission thereunder.
(e) 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 Prospectus; and neither
the character of properties owned or leased by the Company nor the
nature of the business transacted by it make the licensing or
qualification of the Company as a foreign corporation necessary in any
other state or jurisdiction.
(f) The Company is a "public utility company" and a
"subsidiary company" of a "registered holding company" as such terms
are defined in the Public Utility Holding Company Act of 1935, as
amended (the "1935 Act"). The Company has no subsidiaries other than
SCE&G Trust I, a Delaware business trust.
(g) 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 to be issued under the
Indenture as Supplemented, and will conform to the description thereof
contained in the Prospectus. The Indenture as Supplemented has been
duly authorized, executed and delivered by the Company and is a valid
and legally binding instrument in accordance with its terms. The
Indenture as Supplemented has been qualified under the Trust Indenture
Act.
(h) The Indenture as Supplemented 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, which, however, do not make the remedies afforded
inadequate for the practical realization of the security and 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), the prior lien of the
Class A Mortgage 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 Prospectus.
(i) Except as contemplated in the Prospectus, subsequent to
the respective dates as of which information is given in the
Registration Statement and the Prospectus, 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 other), business, net worth or results of
operations of the Company.
(j) Except as set forth in 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 any
material adverse change in the condition (financial or other),
business, net worth or results of operations of the Company or might
materially and adversely affect the properties or assets thereof; and
there are no contracts or documents of the Company which 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.
(k) The Company holds good and marketable title in fee simple,
except as otherwise stated in 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 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
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.
(l) The Class A Bonds which heretofore or on the date hereof
have been issued or on the closing date shall have been issued to the
Trustee under the Indenture as Supplemented as the basis for the
issuance of the Bonds have been duly authorized, executed,
authenticated and delivered to the Trustee under the Indenture as
Supplemented, constitute valid and legally binding obligations of the
Company, entitled to the security and benefits of the Class A Mortgage,
and are equally and ratably issued with all other bonds issued under
the Class A Mortgage.
(m) The Class A Mortgage constitutes a legally valid and
directly enforceable first 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 Class A
Mortgage, which, however, do not make the remedies afforded inadequate
for the practical realization of the security and benefits provided by
the Class A Mortgage, 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 utility
properties of the Company) subject only to excepted encumbrances (as
defined therein) 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 operation of the
business of the Company, and the Class A Mortgage conforms to the
description thereof contained in the Prospectus.
(n) 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 statute, 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 order, rule or regulation 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 which has been obtained
or will be obtained prior to the Closing Date and is 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.
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 A the principal amount of Bonds set forth
opposite the name of such Underwriter in such Schedule A.
The Bonds will be delivered by the Company to you for the
accounts of the several Underwriters against payment of the purchase
price therefor by wire transfer in federal (same day) funds at the
office of XxXxxx Law Firm, P. A., 0000 Xxxxxxx Xxxxxx, 00xx Xxxxx,
Xxxxxxxx, Xxxxx Xxxxxxxx 00000, or such other office as may be mutually
agreeable, at 10:00 A.M., New York City Time, on (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) The Company will file no amendment to the Registration
Statement, and prior to the completion of the offering of the Bonds
make no supplement to the Prospectus, including the initial supplement
to the Prospectus which is filed pursuant to Rule 424 under the Act
referred to in Section 2(a) hereof, of which you have not been advised
and furnished with a copy or to which you have promptly and reasonably
objected; it 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
Prospectus has been filed; it will notify you promptly of any request
by the Commission for the amending or supplementing of the Registration
Statement or Prospectus or for additional information; it will prepare
and file with the Commission, promptly upon your request, any
amendments or supplements to the Registration Statement or Prospectus
which, in your opinion, may be necessary or advisable in connection
with the distribution of the Bonds by the Underwriters; it 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 subsequent to the date of the Prospectus and for so long
as the delivery of a prospectus is required in connection with the
offering or sale of the Bonds; and it will furnish to you at or prior
to the filing thereof a copy of any document which upon filing is
deemed to be incorporated by reference in the Prospectus.
(b) 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.
(c) Within the time during which a prospectus relating to the
Bonds is required to be delivered under the Act, the Company will
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 the Prospectus. If
during such period 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 then existing,
not misleading, or if during such period it is necessary to amend or
supplement the Prospectus to comply with the Act or to file under the
Exchange Act any document incorporated by reference in the Prospectus
in order to comply with the Act or the Exchange Act, the Company will
promptly notify you and, if such event occurs within nine months after
the date hereof, the Company will at its own cost and expense amend or
supplement the Prospectus in order to correct such statement or
omission and in order that the Prospectus as so amended or supplemented
will comply with the requirements of Section 10(a)(1) of the Act or
file such document to effect such compliance. In case any Underwriter
is required to deliver a Prospectus relating to the Bonds at any time
nine months or more after the date hereof, the Company will, at the
expense of the Underwriter requesting the same, prepare promptly such
prospectus or prospectuses and thereafter amend or supplement the same
as may be necessary to permit compliance with the requirements of
Section 10(a)(3) of the Act.
(d) The Company will use its best efforts 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.
(e) The Company has furnished or will furnish to the
Underwriters, as soon as available, copies of the Registration
Statement (two 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), 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.
(f) 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.
(g) 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.
(h) 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 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(d) 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 and each amendment and supplement thereto, in such numbers
as you may reasonably request, the cost of printing this Agreement, 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.
(i) 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 the Prospectus.
(j) 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.
(k) The Company will file with the Commission a Certificate of
Notification on Form U-6B-2 under the 1935 Act within ten days of the
Closing Date.
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) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceeding 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.
(b) No Underwriter shall have advised the Company that the
Registration Statement or 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.
(c) Except as contemplated in the Prospectus, subsequent to
the respective dates as of which information is given in the
Registration Statement and the Prospectus, 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 other), business, net worth or
results of operations of the Company which, in your judgment, makes it
impractical or inadvisable to offer or deliver the Bonds on the terms
and in the manner contemplated in the Prospectus.
(d) 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 is empowered
by its Restated Articles of Incorporation, as amended, 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 as described in the Prospectus.
(ii) Each of the Indenture as Supplemented and the
Class A Mortgage 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) The Class A Bonds which heretofore or on the
date hereof have been issued to the Trustee under the
Indenture as Supplemented as the basis for the issuance of 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 Class A Mortgage, are
entitled to the security and benefits of the Class A Mortgage
and are secured equally and ratably with all other bonds
issued under the Class A Mortgage.
(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, the Bonds and the
Class A Mortgage conform in all material respects to the
statements concerning them in the Prospectus.
(vii) The documents incorporated by reference in the
Prospectus (other than the financial statements and other
financial or statistical data 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
have no reason to 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 Registration Statement has become
effective under the Act, and, to the best of the knowledge of
such counsel, no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings
for that purpose have been instituted or are pending or
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 on the
date hereof or the Closing Date either the Registration
Statement or the Prospectus (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) contained or contains any untrue statement of a
material fact or omitted or omits to state any material fact
required to be stated therein or necessary to make the
statements therein not misleading, and, in their opinion, the
Registration Statement and the Prospectus, as of the date
hereof (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 opinion need be expressed as to financial
statements and other financial or statistical data contained
or incorporated by reference in the Registration Statement 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 or as to the Trustee's Statement
of Eligibility on Form T-1).
In rendering said opinion, (i) counsel may rely upon the
opinion of H. Xxxxxx Xxxxxx, Esquire, delivered pursuant to
paragraph (e), with respect to matters of title, property
descriptions, recording fees and taxes and the filing,
recordation and liens of the Indenture as Supplemented and the
Class A Mortgage; (ii) counsel may state that the
enforceability of the Class A Mortgage, the Class A Bonds, the
Indenture as Supplemented and the Bonds is subject to
applicable bankruptcy, insolvency, reorganization, moratorium
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 Class A Mortgage and the
Indenture as Supplemented may not be enforceable in whole or
in part, the inclusion of such provisions does not affect the
validity of the Class A Mortgage or Indenture as Supplemented,
which contain adequate provisions for the practical
realization of the benefits and security provided therefor.
(e) On the Closing Date, you shall have received the opinion
of H. Xxxxxx Xxxxxx, Esquire, Senior Vice President and General Counsel
of the Company, or Xxxxxx X. Xxxxx, Deputy General Counsel of the
Company, dated the Closing Date, covering the matters set forth in
clauses (i) to (viii), inclusive, of paragraph (d) of this Section and
such other matters incident to the transactions contemplated hereby as
you may reasonably request, and also to the effect that (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
(e) 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), and in rendering the opinion set forth
in clause (i) of paragraph (d) counsel shall also state that neither
the character of property owned or leased by the Company nor the nature
of the business transacted by it make the licensing or qualifications
of the Company as a foreign corporation necessary in any other state or
jurisdiction:
(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 each of the Class A Mortgage and 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) excepted
encumbrances and Permitted Liens, (b) the lien of the Class A
Mortgage, (c) the lien of the Indenture as Supplemented and
(d) 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
each of the Class A Mortgage and 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 and the prior lien of the Class A Mortgage.
(iii) The Class A Mortgage has been duly filed for
recording and recorded and constitutes a valid direct first
mortgage lien on the respective properties presently subject
thereto subject only to excepted encumbrances.
(iv) Except as set forth in "Security - Lien of the
Mortgage" and "The Class A Mortgage - Security" under
"Description of the New Bonds" in the Prospectus,
substantially all fixed electric utility properties used or
useful in its 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, and substantially all
fixed properties and franchises used or useful in its public
utility businesses (other than those of the character not
subject to the lien of the Class A Mortgage 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 Class A
Mortgage have become subject to the respective liens thereof,
subject, however, to excepted encumbrances or Permitted Liens,
as the case may be, the lien of the Class A Mortgage in the
case of the Indenture as Supplemented, and to liens, if any,
existing or placed thereon at the time of the acquisition
thereof by the Company.
(v) Except as otherwise set forth in 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 and Prospectus, and
the Company is not in default or violation of any thereof and
is carrying on its business in accordance therewith and, to
the best of his knowledge, with all applicable federal, state
and other laws and regulations.
(vi) The descriptions in the Registration Statement
and 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 Prospectus which are not described as
required, nor of any contracts or documents of a character
required to be described in the Registration Statement or
Prospectus or required to be incorporated by reference into
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 state securities or Blue Sky laws.
(viii) The statements in the Prospectus which are
stated therein to have been made on the authority of such
counsel have been reviewed by such counsel and, as to matters
of law and legal conclusions, are correct in all material
respects.
(ix) 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 and the Class A Mortgage 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
the best of 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.
(x) All recording fees and taxes applicable to or in
connection with the recording of the Class A Mortgage and the
Indenture as Supplemented and all applicable taxes on or in
connection with the issuance of the Bonds have been paid.
In giving the opinion contemplated by clauses (ii) and (iii),
counsel shall state what, if any, re-recording or re-filing of
the Class A Mortgage and 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 liens of the
Class A Mortgage and Indenture as Supplemented to
after-acquired property, or to maintain such liens with
respect to future advances. Furthermore, in rendering said
opinion, (i) counsel may state that the enforceability of the
Class A Mortgage, the Class A Bonds, the Indenture as
Supplemented and the Bonds, and the enforceability of the
respective lien of the Class A Mortgage and the Indenture as
Supplemented, are subject to applicable bankruptcy,
insolvency, reorganization, moratorium 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 Class A Mortgage and the Indenture
as Supplemented may not be enforceable in whole or in part,
the inclusion of such provisions does not affect the validity
of the Class A Mortgage or the Indenture as Supplemented,
which contain adequate provisions for the practical
realization of the benefits and security provided therefor.
(f) 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 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 H. Xxxxxx Xxxxxx,
Esquire, or Xxxxxx X. Xxxxx, Esquire, referred to above as to all
matters governed by South Carolina law.
(g) On the Closing Date, you shall have received a letter from
Deloitte & Touche LLP, dated the date of delivery thereof, in the form
heretofore delivered to the Representatives.
(h) 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 has been issued, and no proceedings
for that purpose have been instituted or are pending or
threatened, under the Act; and
(iii) The Registration Statement and the Prospectus,
and any amendments or supplements thereto, contain all
statements and information required to be included therein,
and neither the Registration Statement nor the Prospectus, nor
any amendment or supplement thereto, includes any untrue
statement of a material fact or omits to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading 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 Prospectus,
which has not been so filed.
(i) The Company shall have furnished to you such further
certificates and documents as you shall have reasonably requested.
(j) There shall not have been any further announcement by any
"nationally recognized statistical rating organization," as defined for
purposes of Rule 430(g)(2) under the Act, that (i) it is downgrading
its rating assigned to any debt securities of the Company, or (ii) it
is reviewing its rating assigned to any debt securities of the Company
with a view to possible downgrading, or with negative implications, or
with direction not determined.
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 (d), (e) and (f) of
this Section, 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 good standing 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 President or a Vice President 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. (a) The Company will indemnify and hold harmless
each Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter 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 any untrue statement or alleged
untrue statement of any material fact contained in the Registration Statement,
the Prospectus, or any amendment or supplement thereto, or arise out of or are
based upon 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; and will reimburse each Underwriter 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, 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.
(b) Each Underwriter will indemnify and hold harmless the
Company 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 any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement,
the Prospectus, or any amendment or supplement thereto, or arise out of
or are based upon the omission or the alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein 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,
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.
(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 initial supplement to 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 indemnity and contribution
agreements of the several Underwriters contained in Section 6 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 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(h) 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 or the Prospectus, or
in any other documents or arrangements, and the Company agrees promptly
to file any amendments to the Registration Statement or supplements to
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 Representative 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 of major hostilities in which the United States is
involved, a declaration of war by Congress, any other substantial
national or international calamity, 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 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(h) 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 , Attention: , or if sent to the Company, shall be mailed, delivered or
telegraphed and confirmed to the 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 address set forth above. 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. 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:
--------------------------------------
Its:
-------------------------------------
ACCEPTED at ,
as of the date first above written.
By:
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Its:
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By:
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Its:
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SCHEDULE A
UNDERWRITERS
% Series due
----------------------
Name of Underwriters Principal Amount of Bonds
To be Purchased
$----------
---------------------------------------------------- $----------
--------------------------------------
Total _________
Purchase Price equal to
$ , plus accrued
--------------------------
interest from ______________
--------------
