Exhibit 1.01
SOUTH CAROLINA ELECTRIC & GAS COMPANY
First Mortgage Bonds, ________% Series due _____ , _________
UNDERWRITING AGREEMENT
_______ ___, 200__
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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 The Chase Manhattan 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 defined) 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) A registration statement (File No. ___-________) on Form S-3 with
respect to the Bonds, including a prospectus, has 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 has been filed with and declared
effective by the Commission. Copies 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 a prospectus supplement relating to the
Bonds pursuant to Rule 424 under the Act. The registration statement when it
became effective and as it may be amended as of the date of this Agreement is
hereafter 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, (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 lien granted under 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 lien granted under 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 in 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 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 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] [by certified or official bank check
payable in New York Clearing House (next day) funds] at the office of XxXxxx Law
Firm, P.A., 0000 Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxx, Xxxxx Xxxxxxxx, or such
other office as may be mutually agreeable, at 10:00 A.M., New York City Time, on
___________ ___, 200_ (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 or of
any suspension from qualification of the Bonds for sale under the securities
laws of any jurisdiction or any loss of any exemption from such qualification;
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 the caption "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 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 or shall have been advised by 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 under the Indenture as Supplemented 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 Company has filed with the Commission a prospectus
supplement relating to the Bonds pursuant to and within the time period
prescribed by Rule 424 under the Act. 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, General Counsel of the Company, or the Deputy General Counsel
of the Company, 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, General Counsel of the Company, or the 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 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 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 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, except as would not materially adversely affect the condition
(financial or other), business, net worth or results of operations of the
Company or the property or assets thereof.
(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 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.
(ix) 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 Xxxxxx Xxxx &
Priest 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, General Counsel of the Company, or the Deputy General
Counsel of the Company, 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, or with respect to real or personal property of the Company located
in the State of Georgia, may rely upon certificates of state officials as to the
Company's existence as a corporation 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, its directors, officers, employees, agents and each person, if any,
who controls any Underwriter within the meaning of Section 15 of the Act against
any losses, claims, damages or liabilities, joint or several, to which such
Underwriter, director, officer, employee, 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 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,
director, officer, employee, 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, 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 severally (in proportion to its underwriting
obligation) agrees that it 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____________________________________
Its_____________________________
SCHEDULE A
UNDERWRITERS
________% Series due
-------- , -----
Amount of Bonds
Name of Underwriters To be Purchased
$
plus accrued interest
from _________ , 200_
