$50,000,000
SCE&G TRUST I
___% Trust Preferred Securities, Series A
UNDERWRITING AGREEMENT
_______ __, 1997
Credit Suisse First Boston Corporation
and PaineWebber Incorporated
As Underwriters,
c/o Credit Suisse First Boston Corporation,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Ladies and Gentlemen:
1. Introductory. SCE&G Trust I (the "Issuer"), a statutory
business trust created under the Business Trust Act (the "Delaware
Act") of the State of Delaware (Chapter 38, Title 12, of the
Delaware Code, 12 Del. C. Section 3801 et seq.), proposes, subject
to the terms and conditions stated herein, to issue and sell to the
several Underwriters ("Underwriters") ______ of its ___% Trust
Preferred Securities, Liquidation Amount $25 per Trust Preferred
Security (the "Trust Preferred Securities"). The Trust Preferred
Securities represent preferred undivided beneficial interests in
the assets of the Issuer.
The Trust Preferred Securities will be guaranteed by South
Carolina Electric & Gas Company (the "Corporation") to the extent
set forth in the Prospectus (as defined herein), with respect to
distributions and amounts payable upon liquidation or redemption
(the "Guarantee"), pursuant to the Guarantee Agreement (the
"Guarantee Agreement") to be dated as of the Closing Date (as
defined herein), executed and delivered by the Corporation and The
Bank of New York, as trustee (the "Guarantee Trustee") for the
benefit of the holders from time to time of the Trust Preferred
Securities. The proceeds from the sale of the Trust Preferred
Securities to the Underwriters will be aggregated with the entire
proceeds from the sale by the Issuer to the Corporation of the
common beneficial interests in the Issuer (the "Common Securities")
and will be used by the Issuer to purchase the ___% Junior
Subordinated Deferrable Interest Debentures (the "Debentures"),
issued by the Corporation. The Trust Preferred Securities and the
Common Securities will be issued pursuant to the Amended and
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Restated Trust Agreement of the Issuer, to be dated as of the
Closing Date (the "Trust Agreement"), among the Corporation, as
Depositor, and the trustees named therein (the "Trustees") and the
holders from time to time of the Trust Preferred Securities and the
Common Securities. The Debentures will be issued pursuant to a
Junior Subordinated Indenture, to be dated as of the Closing Date
(the "Indenture"), between the Corporation and The Bank of New
York, as trustee (the "Debenture Trustee"). The Trust Preferred
Securities, the Guarantee and the Debentures are collectively
referred to herein as the "Securities." This Agreement, the
Indenture, the Trust Agreement and the Guarantee Agreement are
referred to collectively as the "Operative Documents."
The Issuer and the Corporation, jointly and severally, hereby
agree with the Underwriters as follows:
2. Representations and Warranties. Each of the Issuer and
the Corporation, jointly and severally, represents and warrants to,
and agrees with, the Underwriters that:
(a) The Corporation and the Issuer have filed with the
Securities and Exchange Commission (the "Commission") a
registration statement, and may have filed an amendment or
amendments thereto, on Form S-3, for the registration of the
Securities under the Securities Act of 1933, as amended (the
"Act"), and such registration statement has become effective under
the Act. Such Registration Statement (including all documents
incorporated therein by reference) and including all information
deemed to be a part of such registration statement as of its
Effective Time pursuant to Rule 430A(b) under the Act is
hereinafter referred to as the "Registration Statement." Any post-
effective amendment to such registration statement has been filed
with the Commission prior to the execution and delivery of this
Agreement and the most recent such amendment has been declared
effective by the Commission. For purposes of this Agreement,
"Effective Time" of the Registration Statement means (i) the date
and time as of which such registration statement was declared
effective by the Commission or (ii) the date on which the most
recent post-effective amendment or amendments thereto, if any,
became or become effective. "Effective Date" means the date of the
Effective Time. "Prospectus" means the prospectus (including all
documents incorporated therein by reference) relating to the
Registration Statement, in the form in which such prospectus is
first filed with the Commission on or after the date hereof
pursuant to Rule 424(b) under the Act. Any reference herein to the
terms "amend," "amendment" or "supplement" with respect to the
Registration Statement or the Prospectus shall be deemed to refer
to and include the filing under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), on or after the date hereof
of any document deemed to be incorporated therein by reference.
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(b) On the Effective Date, the Registration Statement
conformed in all material respects to the requirements of the Act,
the Trust Indenture Act of 1939, as amended ("Trust Indenture Act")
and the rules and regulations of the Commission under the Act
("Rules and Regulations"), and did not include any untrue statement
of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading, (ii) on the date of this Agreement, the Registration
Statement conforms, and at the time of filing of the Prospectus
pursuant to Rule 424(b), the Prospectus and any amendments and
supplements to the Registration Statement or the Prospectus will
conform, in all material respects to the requirements of the Act,
the Trust Indenture Act and the Rules and Regulations, and none of
such documents 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 (iii)
at any time when a Prospectus relating to the Securities is
required to be delivered under the Act, the Registration Statement,
the Prospectus and any amendments or supplements to the
Registration Statement or the Prospectus will not include any
untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading. The preceding sentence does not
apply to statements in or omissions from the Registration Statement
or Prospectus based upon written information furnished to the
Corporation by any Underwriter specifically for use therein.
(c) The Corporation has been duly incorporated and is an
existing corporation in good standing under the laws of the State
of South Carolina, with power and authority (corporate and other)
to own its properties and conduct its business as described in the
Prospectus; and the Corporation is duly qualified to do business as
a foreign corporation in good standing in all other jurisdictions
in which its ownership or lease of property or the conduct of its
business requires such qualification.
(d) The Issuer has been duly formed and is validly
existing in good standing as a business trust under the Delaware
Act with the power and authority to own property and to conduct its
business as described in the Prospectus.
(e) All of the outstanding beneficial interests in the
Issuer have been duly authorized and validly issued and are fully
paid and nonassessable to the holders thereof; the holders of such
beneficial interests in the Issuer have no preemptive or other
rights to acquire Trust Preferred Securities or Common Securities;
and there are no restrictions on transfers of the Securities.
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(f) The Trust Agreement has been duly authorized; and
when the Trust Preferred Securities are delivered and paid for
pursuant to this Agreement on the Closing Date, the Trust Agreement
will have been duly executed and delivered and will constitute a
valid and legally binding instrument enforceable in accordance with
its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the rights of
creditors generally and to general equity principles.
(g) The Guarantee Agreement has been duly authorized;
and when the Trust Preferred Securities are delivered and paid for
pursuant to this Agreement on the Closing Date, the Guarantee
Agreement will have been duly executed and delivered and will
constitute a valid and legally binding instrument enforceable in
accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
rights of creditors generally and to general equity principles.
(h) The Trust Preferred Securities have been duly
authorized; when the Trust Preferred Securities are delivered and
paid for pursuant to this Agreement on the Closing Date, such Trust
Preferred Securities will (i) have been validly issued and fully
paid, (ii) represent nonassessable beneficial interests in the
Issuer, (iii) be entitled to the benefits of the Trust Agreement
and (iv) conform to the description thereof contained in the
Prospectus; the issuance of the Trust Preferred Securities is not
subject to preemptive or other similar rights; and the holders of
the Trust Preferred Securities will be entitled to the same
limitation of personal liability extended to stockholders of
private corporations for profit incorporated under the General
Corporation Law of the State of Delaware.
(i) The Common Securities have been duly authorized;
when the Common Securities are delivered and paid for on the
Closing Date, such Common Securities will (i) have been validly
issued and fully paid, (ii) represent nonassessable beneficial
interests in the Issuer, (iii) be entitled to the benefits of the
Trust Agreement and (iv) conform to the description thereof
contained in the Prospectus; the issuance of the Common Securities
is not subject to preemptive or other similar rights; the holders
of the Common Securities will be entitled to the same limitation of
personal liability extended to stockholders of private corporations
for profit incorporated under the General Corporation Law of the
State of Delaware; and at the Closing Date, all of the issued and
outstanding Common Securities of the Issuer will be directly owned
by the Corporation free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity.
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(j) The Indenture has been duly authorized; and when the
Debentures are delivered and paid for on the Closing Date, the
Indenture will have been duly executed and delivered, such
Debentures will have been duly executed, authenticated, issued and
delivered and will conform to the description thereof contained in
the Prospectus and the Indenture and such Debentures will
constitute valid and legally binding obligations of the
Corporation, enforceable in accordance with their terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium and
other laws affecting the rights of creditors generally and to
general equity principles.
(k) No consent, approval, authorization or order of, or
filing with, any governmental agency or body or any court is
required for the consummation of the transactions contemplated by
the Operative Documents in connection with the issuance and sale of
the Securities and the Common Securities by the Corporation and the
Issuer, except such as have been obtained under the Act, the Trust
Indenture Act or the Rules and Regulations, such as may be required
under state securities or Blue Sky laws or the by-laws and rules of
the National Association of Securities Dealers, Inc. (the "NASD")
in connection with the purchase and distribution by the
Underwriters of the Securities and such authorization as may be
required from the Public Service Commission of the State of South
Carolina (the "PSC"), which has been obtained and is in full force
and effect.
(l) The execution, delivery and performance of the
Operative Documents, and the issuance and sale of the Securities
and the Common Securities and compliance with the terms and
provisions thereof will not result in a breach or violation of any
of the terms and provisions of, or constitute a default under, any
statute, any rule, regulation or order of any governmental agency
or body or any court, domestic or foreign, having jurisdiction over
the Corporation or the Issuer or any of their properties, or any
agreement or instrument to which the Corporation or the Issuer is
a party or by which the Corporation or the Issuer is bound or to
which any of the properties of the Corporation or the Issuer is
subject, or the charter or by-laws of the Corporation or any such
subsidiary or the Trust Agreement, and each of the Corporation and
the Issuer have full power and authority to authorize, issue and
sell the Securities and the Common Securities as contemplated by
the Operative Documents.
(m) This Agreement has been duly authorized, executed
and delivered by each of the Corporation and the Issuer.
(n) Except as disclosed in the Prospectus, the
Corporation has good and marketable title to all real properties
and all other properties and assets owned by it, in each case free
from liens, encumbrances and defects that would materially affect
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the value thereof or materially interfere with the use made or to
be made thereof by it; and except as disclosed in the Prospectus,
the Corporation hold any leased real or personal property under
valid and enforceable leases with such exceptions that would
materially interfere with the use made or to be made thereof by it.
(o) The Corporation possesses adequate certificates,
authorities or permits issued by appropriate governmental agencies
or bodies necessary to conduct the business now operated by it and
has not received any notice of proceedings relating to the
revocation or modification of any such certificate, authority or
permit that, if determined adversely to the Corporation, would
individually or in the aggregate have a material adverse effect on
the Corporation.
(p) No labor dispute with the employees of the
Corporation exists or, to the knowledge of the Corporation, is
imminent that might have a material adverse effect on the
Corporation.
(q) The Corporation owns, possesses or can acquire on
reasonable terms, adequate trademarks, trade names and other rights
to inventions, know-how, patents, copyrights, confidential
information and other intellectual property (collectively,
"intellectual property rights") necessary to conduct the business
now operated by it, or presently employed by it, and has not
received any notice of infringement of or conflict with asserted
rights of others with respect to any intellectual property rights
that, if determined adversely to the Corporation would individually
or in the aggregate have a material adverse effect on the
Corporation.
(r) Except as disclosed in the Prospectus, neither the
Company nor any of its subsidiaries is in violation of any statute,
any rule, regulation, decision or order of any governmental agency
or body or any court, domestic or foreign, relating to the use,
disposal or release of hazardous or toxic substances or relating to
the protection or restoration of the environment or human exposure
to hazardous or toxic substances (collectively, "environmental
laws"), owns or operates any real property contaminated with any
substance that is subject to any environmental laws, is liable for
any off-site disposal or contamination pursuant to any
environmental laws, or is subject to any claim relating to any
environmental laws, which violation, contamination, liability or
claim would individually or in the aggregate have a material
adverse effect on the Company and its subsidiaries taken as a
whole; and the Company is not aware of any pending investigation
which might lead to such a claim.
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(s) Except as disclosed in the Prospectus, there are no
pending actions, suits or proceedings against or affecting the
Corporation or any of its properties that, if determined adversely
to the Corporation, would individually or in the aggregate have a
material adverse effect on the condition (financial or other),
business, properties or results of operations of the Corporation,
or would materially and adversely affect the ability of the
Corporation or the Issuer to perform its obligations under the
Operative Documents, or which are otherwise material in the context
of the sale of the Securities; and no such actions, suits or
proceedings are threatened or, to the Corporation's knowledge,
contemplated.
(t) The financial statements included or incorporated by
reference in the Prospectus present fairly the financial position
of the Corporation and its consolidated affiliate as of the dates
shown and their results of operations and cash flows for the
periods shown, and such financial statements have been prepared in
conformity with the generally accepted accounting principles in the
United States applied on a consistent basis, except as otherwise
disclosed in the Registration Statement.
(u) Except as disclosed in or contemplated by in the
Prospectus, since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus
there has been no material adverse change, nor any development or
event involving a prospective material adverse change, in the
condition (financial or other), business, properties or results of
operations of the Corporation.
(v) Neither the Issuer nor the Corporation is and, after
giving effect to the offering and sale of the Securities and the
application of the proceeds thereof as described in the Prospectus,
neither of them will be, an "investment company" or a company
"controlled" by an investment company as defined in the United
States Investment Company Act of 1940 (the "Investment Company
Act").
3. Purchase, Sale and Delivery of Securities. On the basis
of the representations, warranties and agreements herein contained,
but subject to the terms and conditions herein set forth, the
Issuer agrees to sell to the Underwriters, and the Underwriters
agree, severally and not jointly, to purchase from the Issuer, at
a purchase price of U.S. $25 per Trust Preferred Security plus
accumulated distributions, if any, from _____________ ____, 1997
to the Closing Date, the respective liquidation amounts of
Securities set forth opposite the names of the Underwriters in
Schedule A hereto.
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The Corporation will deliver against payment of the purchase
price the Trust Preferred Securities in the form of one or more
permanent global securities in definitive form (the "Global
Securities") deposited with the Property Trustee as custodian for
The Depository Trust Company ("DTC") and registered in the name of
Cede & Co., as nominee for DTC. Interests in any permanent Global
Securities will be held only in book-entry form through DTC, except
in the limited circumstances described in the Prospectus. Payment
for the Trust Preferred Securities shall be made by the
Underwriters in Federal (same day) funds by official check or
checks or wire transfer to an account previously designated to
Credit Suisse First Boston Corporation ("CSFBC") by the Corporation
at a bank acceptable to CSFBC drawn to the order of the Issuer at
the office of Xxxx & Priest LLP, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, at 10:00 A.M. (New York time), on _______ __, 1997 or
at such other time not later than seven full business days
thereafter as CSFBC and the Corporation determine, such time being
herein referred to as the "Closing Date," against delivery to the
Property Trustee as custodian for DTC of the Global Securities
representing all of the Trust Preferred Securities. The Global
Securities will be made available for checking at the above office
at least 24 hours prior to the Closing Date.
As compensation for the Underwriters' commitment and in view
of the fact that the proceeds of the sale of the Trust Preferred
Securities and the Common Securities will be used to purchase the
Debentures, the Corporation will pay, on the Closing Date, to each
Underwriter a commission of $__.00 per Trust Preferred Security
purchased by such Underwriter on the Closing Date by wire transfer
of immediately available funds to bank accounts designated by
CSFBC.
4. Offering by Underwriters. It is understood that the
several Underwriters propose to offer the Securities for sale to
the public as set forth in the Prospectus.
5. Certain Agreements of the Corporation and the Issuer.
Each of the Corporation and the Issuer, jointly and severally,
agrees with the Underwriters that:
(a) The Corporation will file the Prospectus with the
Commission pursuant to and in accordance with Rule 424(b)(1) (or,
if applicable and if consented to by you, subparagraph (5)(4))
within the time periods prescribed. The Corporation will advise you
promptly of any such filing pursuant to Rule 424(b).
(b) The Corporation will advise you promptly of any
proposal to amend or supplement the Registration Statement or the
Prospectus and will not effect such amendment or supplementation
without your consent; and the Corporation will also advise you
promptly of the filing and effectiveness of any amendment or
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supplementation of the Registration Statement or the Prospectus and
of the institution by the Commission of any stop order proceedings
in respect of the Registration Statement and will use its best
efforts to prevent the issuance of any such stop order and to
obtain as soon as possible its lifting, if issued.
(c) If at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event
occurs as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact
or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading, or if it is necessary at any time to amend
the Prospectus to comply with the Act, the Corporation promptly
will prepare and file with the Commission an amendment or
supplement which will correct such statement or omission or an
amendment which will effect such compliance. Neither your consent
to, nor your delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section
6.
(d) As soon as practicable, but not later than the
Availability Date (as defined below), the Corporation will make
generally available to its security holders an earnings statement
covering a period of at least 12 months beginning after the
Effective Date which will satisfy the provisions of Section 11(a)
of the Act. For the purpose of the preceding sentence,
"Availability Date" means the 45th day after the end of the fourth
fiscal quarter following the fiscal quarter that includes the
Closing Date, except that, if such fourth fiscal quarter is the
last quarter of the Corporation's fiscal year, "Availability Date"
means the 90th day after the end of such fourth fiscal quarter.
(e) The Corporation will furnish to each of the
Underwriters copies of the Registration Statement (which will be
signed and will include all exhibits), each related preliminary
prospectus, the Prospectus and all amendments and supplements to
such documents, in each case in such quantities as CSFBC requests.
(f) The Corporation will arrange for the qualification
of the Securities for sale and the determination of their
eligibility for investment under the laws of such jurisdictions as
CSFBC designates and will continue such qualifications in effect so
long as required for the distribution.
(g) During the period of five years hereafter, the
Corporation will furnish to CSFBC, as soon as practicable after the
end of each fiscal year, a copy of its annual report to
stockholders for such year; and the Corporation will furnish to
CSFBC (i) as soon as available, a copy of each report and any
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definitive proxy statement of the Corporation filed with the
Commission under the Exchange Act or mailed to stockholders, and
(ii) from time to time, such other information concerning the
Corporation as CSFBC may reasonably request.
(h) The Corporation will pay all expenses incident to
the performance of its obligations under this Agreement and will
reimburse the Underwriters for any expenses (including fees and
disbursements of counsel) incurred by them in connection with
qualification of the Securities for sale and determination of their
eligibility for investment under the laws of such jurisdictions as
CSFBC designates and the printing of memoranda relating thereto,
for any fees charged by investment rating agencies for the rating
of the Securities, for the filing fee incident to, and the fees and
disbursements of counsel to the Underwriters in connection with,
the review by the NASD of the Securities, for any travel expenses
of the Corporation's officers and employees and any other expenses
of the Corporation in connection with attending or hosting meetings
with prospective purchasers of the Securities and for expenses
incurred in distributing preliminary prospectuses and the
Prospectus (including any amendments and supplements thereto) to
the Underwriters.
6. Conditions of the Obligation of the Underwriters. The
obligation of the Underwriters to purchase and pay for the Trust
Preferred Securities will be subject to the accuracy of the
representations and warranties on the part of the Corporation and
the Issuer herein, to the accuracy of the statements of officers of
the Corporation and the Issuer made pursuant to the provisions
hereof, to the performance by the Corporation and the Issuer of
their respective obligations hereunder and to the following
additional conditions precedent:
(a) CSFBC shall have received a letter, dated the date
thereof, of Deloitte & Touche LLP confirming that they are
independent public accountants within the meaning of the Act and
the applicable published Rules and Regulations thereunder and
stating to the effect that:
(i) In their opinion the financial statements examined
by them and included in the Registration Statements comply as
to form in all material respects with the applicable
accounting requirements of the Act and the related published
Rules and Regulations;
(ii) they have performed the procedures specified by the
American Institute of Certified Public Accountants for a
review of interim financial information as described in
Statement of Auditing Standards No. 71, Interim Financial
Information, on the unaudited financial statements included in
the Registration Statements;
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(iii) on the basis of the review referred to in clause
(ii) above, a reading of the latest available interim
financial statements of the Corporation, inquiries of
officials of the Corporation who have responsibility for
financial and accounting matters and other specified
procedures, nothing came to their attention that caused them
to believe that:
(A) the unaudited financial statements included in
the Registration Statements do not comply as to form in
all material respects with the applicable accounting
requirements of the Securities Act, the Exchange Act and
the related published Rules and Regulations or any
material modifications should be made to such unaudited
financial statements for them to be in conformity with
generally accepted accounting principles;
(B) at the date of the latest available balance
sheet read by such accountants, or at a subsequent
specified date not more than three business days prior to
the date of this Agreement, there was any decrease in the
capital stock or any increase in long-term debt of the
Corporation and its consolidated affiliates or, at the
date of the latest available balance sheet read by such
accountants, there was any decrease in consolidated total
assets, as compared with amounts shown on the latest
balance sheet included in the Prospectus; or
(C) for the period from the date of the latest
income statement included in the Prospectus to the
closing date of the latest available income statement
read by such accountants and to a subsequent specified
date not more than three business days prior to the date
of this Agreement there were any decreases, as compared
with the corresponding periods of the previous year, in
consolidated revenues or consolidated net income;
except in all cases set forth in clauses (B) and (C)
above for changes, increases or decreases which the
Prospectus disclose have occurred or may occur or which
are described in such letter; and
(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other
financial information contained in the Registration Statements
(in each case to the extent that such dollar amounts,
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percentages and other financial information are derived from
the general accounting records of the Corporation and its
affiliates subject to the internal controls of the
Corporation's accounting system or are derived directly from
such records by analysis or computation) with the results
obtained from inquiries, a reading of such general accounting
records and other procedures specified in such letter and have
found such dollar amounts, percentages and other financial
information to be in agreement with such results, except as
otherwise specified in such letter.
For purposes of this subsection all financial statements and
schedules included in material incorporated by reference into the
Prospectus shall be deemed included in the Registration Statement
for purposes of this subsection.
(b) Prior to the Closing Date, no stop order suspending
the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been
instituted or, to the knowledge of the Corporation or CSFBC, shall
be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any
development or event involving a prospective change, in the
condition (financial or other), business, properties or results of
operations of the Corporation which, in the judgment of a majority
in interest of the Underwriters, is material and adverse and makes
it impractical or inadvisable to proceed with completion of the
public offering or the sale of and payment for the Securities; (ii)
any downgrading in the rating of any debt securities of the
Corporation by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the
Act), or any public announcement that any such organization has
under surveillance or review its rating of any debt securities of
the Corporation (other than an announcement with positive
implications of a possible upgrading, and no implication of a
possible downgrading, of such rating); (iii) any suspension or
limitation of trading in securities generally on The New York Stock
Exchange, or any setting of minimum prices for trading on such
exchange, or any suspension of trading of any securities of the
Corporation on any exchange or in the over-the-counter market; (iv)
any banking moratorium declared by United States federal, South
Carolina or New York authorities; or (v) any outbreak or escalation
of major hostilities in which the United States is involved, any
declaration of war by Congress or any other substantial national or
international calamity or emergency if, in the judgment of a
majority in interest of the Underwriters, the effect of any such
outbreak, escalation, declaration, calamity or emergency makes it
impractical or inadvisable to proceed with completion of the public
offering or the sale of and payment for the Securities.
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(d) CSFBC shall have received an opinion, dated the
Closing Date, of X. X. Xxxxxx, Esquire, General Counsel to the
Corporation, in form and substance reasonably satisfactory to
counsel to the Underwriters, to the effect that:
(i) The Corporation is validly existing as a corporation
under the laws of South Carolina, with corporate power and
authority to own its properties and conduct its business as
described in the Prospectus; and the Corporation is duly
qualified to do business as a foreign corporation in good
standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such
qualification;
(ii) The Indenture has been duly authorized, executed
and delivered by the Corporation; the Debentures have been
duly authorized, executed, authenticated, issued and delivered
by the Corporation and conform to the description thereof
contained in the Prospectus; and the Indenture, assuming due
execution and delivery thereof by the Debenture Trustee, and
the Debentures constitute valid and legally binding
obligations of the Corporation enforceable in accordance with
their terms, subject to bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the rights
of creditors generally and to general equity principles;
(iii) Each of the Trust Agreement and the Guarantee
Agreement has been duly authorized, executed and delivered by
the Corporation and constitutes a valid and legally binding
obligation of the Corporation enforceable in accordance with
its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the rights
of creditors generally and to general equity principles.
(iv) Neither the Corporation nor the Issuer is, and
after giving effect to the offering and sale of the Securities
and the application of the proceeds thereof as described in
the Prospectus will be, an "investment company" or a company
"controlled" by an investment company as defined in the
Investment Company Act.
(v) An order has been or orders have been entered by the
Public Service Commission of South Carolina permitting the
issuance and sale of the Securities as contemplated by this
Agreement, and no further consent, approval, authorization or
order of, or filing with, any governmental agency or body or
any court is required for the consummation of the transactions
contemplated by the Operative Documents in connection with the
issuance or sale of the Securities by the Corporation and the
Issuer, except such as may be required under state securities
or Blue Sky laws;
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(vi) The execution, delivery and performance of
Operative Documents and the issuance and sale of the
Securities and compliance with the terms and provisions
thereof will not result in a breach or violation of any of the
terms and provisions of, or constitute a default under, any
statute, any rule, regulation or order of any governmental
agency or body or any court having jurisdiction over the
Corporation or any of its properties, or any agreement or
instrument known to such counsel to which the Corporation is
a party or by which the Corporation is bound or to which any
of the properties of the Corporation is subject, or the
charter or by-laws of the Corporation and the Corporation, and
the Issuer has full power and authority to authorize, issue
and sell the Securities as contemplated by this Agreement;
(vii) The Registration Statement has become effective
under the Act, the Prospectus was filed with the Commission
pursuant to the subparagraph of Rule 424(b) specified in such
opinion on the date specified therein and, to the best of the
knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement or of any part
thereof has been issued and no proceedings for that purpose
have been instituted or are pending or contemplated under the
Act;
(viii) The Registration Statement, as of its effective
date, and the Prospectus, and any amendment or supplement
thereto as of its date, appeared on their face to be
appropriately responsive to the requirements of the Act, the
Trust Indenture Act and the Rules and Regulations; the
Exchange Act filings incorporated by reference or deemed to be
incorporated by reference in the Prospectus complied as to
form when filed in all material respects with the requirements
of the Exchange Act and the applicable rules and regulations
of the Commission thereunder; it being understood in all
events that such counsel need express no opinion as to the
financial statements or other financial or statistical data
contained or incorporated by reference in the Registration
Statement or the Prospectus, as to any information relating to
the book-entry system of payments and transfers of the
Securities provided by The Depository Trust Company or as to
the trustees' Statements of Eligibility on Form T-1 included
in the Registration Statement;
(ix) Based upon such counsel's participation in
conferences with representatives of the Corporation and its
accountants and participation in prior financing of the
Corporation, such counsel has no reason to believe that the
Registration Statement, as of its effective date, or the
Prospectus, or any amendment or supplement thereto, as of its
89
date or as of the Closing Date, contained any untrue statement
of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the
statements therein not misleading, and the descriptions in the
Registration Statement and Prospectus, and any amendment or
supplement thereto, of statutes, legal and governmental
proceedings and contracts and other documents are accurate and
fairly present the information required to be shown; it being
understood in all events that such counsel need express no
opinion as to the financial statements or other financial or
statistical data contained in the Registration Statement or
the Prospectus, as to any information relating to the book-
entry system of payments and transfers of the Securities
provided by The Depository Trust Company or as to the
trustees' Statements of Eligibility on Form T-1 included in
the Registration Statement;
(x) This Agreement has been duly authorized, executed
and delivered by the Corporation and the Issuer and
constitutes a valid and legally binding obligation of the
Corporation and the Issuer;
(xi) To such counsel's knowledge, there are no pending
actions, suits or proceedings against or affecting the
Corporation or any of its properties that, if determined
adversely to the Corporation, would individually or in the
aggregate have a material adverse effect on the condition
(financial or other), business, properties or results of
operations of the Corporation, or would materially and
adversely affect the ability of the Corporation or the Issuer
to perform their respective obligations under the Operative
Documents, or which are otherwise material in the context of
the sale of the Securities; and no such actions, suits or
proceedings are threatened or, to such counsel's knowledge,
contemplated; and
(xii) The Trust Preferred Securities have been duly
authorized for listing by The New York Stock Exchange, subject
to official notice of issuance.
Such counsel's opinion may be limited to the laws of
South Carolina and Delaware and the federal laws of the United
States; provided that in rendering such opinion counsel may
rely, as to matters of Delaware law, on the opinion of
Xxxxxxxx, Xxxxxx & Finger or other counsel licensed in
Delaware reasonably acceptable to CSFBC and, as to matters of
New York law, on the opinion of Xxxx & Priest LLP.
(e) CSFBC shall have received an opinion, dated the
Closing Date, of XxXxxx Law Firm, P.A., counsel for the
Corporation, in form and substance reasonably satisfactory to
counsel to the Underwriters, to the effect that:
90
(i) The Corporation is validly existing as a corporation
under the laws of South Carolina, with corporate power and
authority to own its properties and conduct its business as
described in the Prospectus;
(ii) The Indenture has been duly authorized, executed
and delivered by the Corporation; the Debentures have been
duly authorized, executed, authenticated, issued and delivered
by the Corporation and conform to the description thereof
contained in the Prospectus; and the Indenture, assuming due
execution and delivery thereof by the Debenture Trustee, and
the Debentures constitute valid and legally binding
obligations of the Corporation enforceable in accordance with
their terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the rights
of creditors generally and to general equity principles;
(iii) Each of the Trust Agreement and the Guarantee
Agreement has been duly authorized, executed and delivered by
the Corporation and constitutes a valid and legally binding
obligation of the Corporation enforceable in accordance with
its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the rights
of creditors generally and to general equity principles.
(iv) Neither the Corporation nor the Issuer is, and
after giving effect to the offering and sale of the Securities
and the application of the proceeds thereof as described in
the Prospectus will be, an "investment company" or a company
"controlled" by an investment company as defined in the
Investment Company Act.
(v) The Issuer has full corporate power and authority to
authorize, issue and sell the Securities as contemplated by
this Agreement;
(vi) The Registration Statement has become effective
under the Act, the Prospectus was filed with the Commission
pursuant to the subparagraph of Rule 424(b) specified in such
opinion on the date specified therein and, to the best of the
knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement or of any part
thereof has been issued and no proceedings for that purpose
have been instituted or are pending or contemplated under the
Act;
91
(vii) The Registration Statement, as of its effective
date, and the Prospectus, and any amendment or supplement
thereto as of its date, appeared on their face to be
appropriately responsive to the requirements of the Act, the
Trust Indenture Act and the Rules and Regulations; the
Exchange Act filings incorporated by reference or deemed to be
incorporated by reference in the Prospectus complied as to
form when filed in all material respects with the requirements
of the Exchange Act and the applicable rules and regulations
of the Commission thereunder; it being understood in all
events that such counsel need express no opinion as to the
financial statements or other financial or statistical data
contained or incorporated by reference in the Registration
Statement or the Prospectus, as to any information relating to
the book-entry system of payments and transfers of the
Securities provided by The Depository Trust Company or as to
the trustees' Statements of Eligibility on Form T-1 included
in the Registration Statement;
(viii) Based upon such counsel's participation in
conferences with representatives of the Corporation and its
accountants and participation in prior financing of the
Corporation, such counsel has no reason to believe that the
Registration Statement, as of its effective date, or the
Prospectus, or any amendment or supplement thereto, as of its
date or as of the Closing Date, contained any untrue statement
of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the
statements therein not misleading, and the descriptions in the
Registration Statement and Prospectus, and any amendment or
supplement thereto, of statutes, legal and governmental
proceedings and contracts and does other documents are
accurate and fairly present the information required to be
shown; it being understood in all events that such counsel
need express no opinion as to the financial statements or
other financial or statistical data contained in the
Registration Statement or the Prospectus, as to any
information relating to the book-entry system of payments and
transfers of the Securities provided by The Depository Trust
Company or as to the trustees' Statements of Eligibility on
Form T-1 included in the Registration Statement;
(ix) This Agreement has been duly authorized, executed
and delivered by the Corporation and the Issuer; and
(x) The Trust Preferred Securities have been duly
authorized for listing by The New York Stock Exchange, subject
to official notice of issuance.
92
Such counsel's opinion may be limited to the laws of
South Carolina and Delaware and the federal laws of the United
States; provided that in rendering such opinion counsel may
rely, as to matters of Delaware law, on the opinion of
Xxxxxxxx, Xxxxxx & Finger or other counsel licensed in
Delaware reasonably acceptable to CSFBC and, as to matters of
New York law, on the opinion of Xxxx & Priest LLP.
(f) CSFBC shall have received an opinion, dated the
Closing Date, of [ ], counsel to the Delaware Trustee,
in form and substance reasonably satisfactory to counsel to the
Underwriters, to the effect that:
(g) The Bank of New York (Delaware), a Delaware banking
corporation, has been duly incorporated and is validly existing in
good standing as a corporation under the laws of the State of
Delaware and has the corporate power to act as Trustee of a
Delaware business trust under the laws of the State of Delaware, 12
Del.C. Section 3801 et seq.
(h) CSFBC shall have received an opinion, dated the
Closing Date, of [ ], counsel to The Bank of
New York, in form and substance reasonably satisfactory to counsel
to the Underwriters, to the effect that:
(i) The Bank of New York is a corporation duly
incorporated and validly existing under the laws of the State
of New York;
(ii) The execution, delivery and performance by The Bank
of New York, as Property Trustee of the Issuer, of the Trust
Agreement, the execution, delivery and performance by The Bank
of New York, as Guarantee Trustee, of the Guarantee Agreement
and the Additional Guarantee Agreement and the execution,
delivery and performance by The Bank of New York, as the
Debenture Trustee, of the Indenture have been duly authorized
by all necessary corporate action on the part of the Property
Trustee and the Guarantee Trustee and the Debenture Trustee,
respectively. The Trust Agreement, the Guarantee Agreement
and the Indenture have been duly executed and delivered by the
Property Trustee and the Guarantee Trustee and constitute the
legal, valid and binding obligations of the Property Trustee
and the Guarantee Trustee and the Debenture Trustee,
respectively, enforceable against the Property Trustee, the
Guarantee Trustee and the Debenture Trustee, respectively, in
accordance with their terms, except as enforcement thereof may
be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation, receivership or
similar laws relating to the enforcement of creditors' rights
generally, and by general principles of equity;
93
(iii) The execution, delivery and performance of the
Trust Agreement, the Guarantee Agreement and the Indenture by
the Property Trustee, the Guarantee Trustee and the Debenture
Trustee, respectively, do not conflict with or constitute a
breach of the applicable organizational documents or by-laws
of the Property Trustee, the Guarantee Trustee or the
Debenture Trustee, respectively, or the terms of any indenture
or other agreement or instrument known to such counsel and to
which the Property Trustee, the Guarantee Trustee or the
Debenture Trustee, respectively, is a party or is bound or any
judgment, order or decree known to such counsel to be
applicable to the Property Trustee, the Guarantee Trustee or
the Debenture Trustee, respectively, of any court, regulatory
body, administrative agency, governmental body or arbitrator
having jurisdiction over the Property Trustee, the Guarantee
Trustee or the Debenture Trustee, respectively; and
(iv) No consent, approval or authorization of, or
registration with or notice to, any federal or state banking
authority is required for the execution, delivery or
performance by the Property Trustee, the Guarantee Trustee or
the Debenture Trustee of the Trust Agreement, the Guarantee
Agreement or the Indenture, respectively.
(i) CSFBC shall have received an opinion, dated the
Closing Date, of XxXxxx Law Firm, P.A., special United States tax
counsel to the Corporation and the Issuer, in form and substance
reasonably satisfactory to counsel for the Underwriters, to the
effect that subject to the qualifications set forth therein, the
statements made in the Prospectus under the caption "Certain United
States Federal Income Tax Consequences" fairly present in all
material respects the principal United States federal income tax
consequences of an investment in the Trust Preferred Securities.
(j) CSFBC shall have received an opinion, dated the
Closing Date, of Xxxxxxxx, Xxxxxx & Finger, special Delaware
counsel to the Corporation and special counsel to the Issuer, in
form and substance reasonably satisfactory to counsel for the
Underwriters, to the effect that:
(i) The Issuer has been duly created and is validly
existing in good standing as a business trust under the
Delaware Act, and all filings required under the laws of the
State of Delaware with respect to the creation and valid
existence of the Issuer as a business trust have been made;
(ii) Under the Delaware Act and the Trust Agreement, the
Issuer has the trust power and authority to own its property
and conduct its business, all as described in the Prospectus;
94
(iii) The Trust Agreement constitutes a valid and
binding obligation of the Corporation and the Trustees, and is
enforceable against the Corporation and the Trustees in
accordance with its terms, subject, as to enforcement, to the
effect upon the Trust Agreement of (i) bankruptcy, insolvency,
moratorium, receivership, reorganization, liquidation,
fraudulent transfer and other similar laws relating to the
rights and remedies of creditors generally, (ii) principles of
equity, including applicable law relating to fiduciary duties
(regardless of whether considered and applied in a proceeding
in equity or at law), and (iii) the effect of applicable
public policy on the enforceability of provisions relating to
indemnification or contribution;
(iv) Under the Delaware Act and the Trust Agreement, the
Issuer has the trust power and authority (i) to execute and
deliver, and to perform its obligations under, this Agreement
and (ii) to issue and perform its obligations under the Trust
Preferred Securities and the Common Securities;
(v) Under the Delaware Act and the Trust Agreement, the
execution and delivery by the Issuer of this Agreement, and
the performance by the Issuer of its obligations hereunder,
have been duly authorized by all necessary trust action on the
part of the Issuer;
(vi) The Trust Preferred Securities have been duly
authorized by the Trust Agreement and are duly and validly
issued and, subject to the qualifications set forth herein,
fully paid and nonassessable undivided beneficial interests in
the assets of the Issuer and are entitled to the benefits of
the Trust Agreement. The holders of the Trust Preferred
Securities, as beneficial owners of the Issuer, will be
entitled to the same limitation of personal liability extended
to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware.
Such counsel may note that the holders of Trust Preferred
Securities may be obligated, pursuant to the Trust Agreement,
(i) to provide indemnity and/or security in connection with
and pay taxes or governmental charges arising from transfers
or exchanges of certificates for Trust Preferred Securities
and the issuance of replacement certificates for Trust
Preferred Securities and (ii) to provide security or indemnity
in connection with requests of or directions to the Property
Trustee to exercise its rights and powers under the Trust
Agreement;
(vii) Under the Delaware Act and the Trust Agreement,
the issuance of the Trust Preferred Securities is not subject
to preemptive rights;
95
(viii) The issuance and sale by the Issuer of the Trust
Preferred Securities, the execution, delivery and performance
by the Issuer of this Agreement, the consummation by the
Issuer of the transactions contemplated hereby and compliance
by the Issuer with its obligations hereunder, and the
performance by the Corporation, as sponsor, of its obligations
under the Trust Agreement (A) do not violate (i) any of the
provisions of the certificate of trust of the Issuer or the
Trust Agreement or (ii) any applicable Delaware law or
administrative regulation (except that such counsel need
express no opinion with respect to the securities laws of the
State of Delaware) and (B) do not require any consent,
approval, license, authorization or validation of, or filing
or registration with, any Delaware legislative, administrative
or regulatory body under the laws or administrative
regulations of the State of Delaware (except that such counsel
need express no opinion with respect to the securities laws of
the State of Delaware); and
(ix) Assuming that the Issuer derives no income from or
in connection with sources within the State of Delaware and
has no assets, activities (other than maintaining the Delaware
Trustee and the filing of documents with the Secretary of
State of the State of Delaware) or employees in the State of
Delaware, the holders of the Trust Preferred Securities (other
than those holders of Trust Preferred Securities who reside or
are domiciled in the State of Delaware) will have no liability
for income taxes imposed by the State of Delaware solely as a
result of their participation in the Issuer, and the Issuer
will not be liable for any income tax imposed by the State of
Delaware.
(k) CSFBC shall have received from Xxxx & Priest LLP,
counsel for the Underwriters, such opinion or opinions, dated such
Closing Date, with respect to the incorporation of the Corporation,
the validity of the Securities delivered on such Closing Date, the
Registration Statements, the Prospectus and other related matters
as the Underwriters may require, and the Corporation shall have
furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(l) Each Underwriter shall have received a certificate,
dated the Closing Date, of the Chairman and the Chief Executive
Officer or the President and a principal financial or accounting
officer of the Corporation in which such officers, to the best of
their knowledge after reasonable investigation, shall state that
the representations and warranties of the Corporation and the
Issuer in this Agreement are true and correct, that each of the
Corporation and the Issuer has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied
hereunder at or prior to the Closing Date, and that, subsequent to
96
the date of the most recent financial statements included in or
incorporated by reference in the Prospectus there has been no
material adverse change, nor any development or event involving a
prospective material adverse change, in the condition (financial or
other), business, properties or results of operations of the
Corporation except as set forth in or contemplated by the
Prospectus or as described in such certificate.
(m) CSFBC shall have received a letter, dated the
Closing Date, of Deloitte & Touche LLP which meets the requirements
of subsection (a) of this Section, except that the specified date
referred to in such subsection will be a date not more than three
business days prior to the Closing Date for the purposes of this
subsection.
(n) CSFBC shall have received evidence reasonably
acceptable to it that the Trust Preferred Securities have been
authorized for listing by The New York Stock Exchange, subject to
official notice of issuance.
The Corporation will furnish the Underwriter with such conformed
copies of such opinions, certificates, letters and documents as the
Underwriters reasonably request.
7. Indemnification and Contribution. (a) Each of the
Corporation and the Issuer will, jointly and severally, 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 Securities Act or the Exchange 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 any Registration Statement, the Prospectus, or any
amendment or supplement thereto, or any related preliminary
prospectus or preliminary prospectus supplement, 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
such Underwriter in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that neither the Corporation nor the
Issuer will 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 in or omission or
alleged omission from any of such documents in reliance upon and in
conformity with written information furnished to the Corporation by
any Underwriter specifically for use therein, it being understood
and agreed that the only such information furnished by any
Underwriter consists of the information described as such in
subsection (b) below.
97
(b) Each Underwriter will severally and not jointly
indemnify and hold harmless each of the Corporation and the Issuer
against any losses, claims, damages or liabilities to which any of
them 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 any
Registration Statement, the Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus or
preliminary prospectus supplement, 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
reliance upon and in conformity with written information furnished
to the Corporation by such Underwriter specifically for use
therein, and will reimburse any legal or other expenses reasonably
incurred by any of them in connection with investigating or
defending any such loss, claim, damage, liability or action as such
expenses are incurred, it being understood and agreed that the only
such information furnished by any Underwriter consists of the
following information in the Prospectus furnished on behalf of each
Underwriter: the last paragraph at the bottom of the cover page
concerning the terms of the offering by the Underwriters, the
legend concerning over-allotment and stabilizing on the inside
front cover page, the concession and reallowance figures appearing
in the third paragraph under the caption "Underwriting" and the
information in the fifth paragraph under the caption "Underwriting"
in the Prospectus.
(c) Promptly after receipt by an indemnified party under
this Section of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under subsection (a) or (b) above,
notify the indemnifying party of the commencement thereof, but the
omission to so notify the indemnifying party will not relieve it
from any liability which it may have to any indemnified party
otherwise than under subsection (a) or (b) above. In case any such
action is brought against any indemnified party and it notifies the
indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent
that it may wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except with
the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party
to such indemnified party of its election so to assume the defense
thereof, the indemnifying party will not be liable to such
indemnified party under this Section for any legal or other
expenses subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the prior
98
written consent of the indemnified party, effect any settlement of
any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party unless such
settlement includes an unconditional release of such indemnified
party from all liability on any claims that are the subject matter
of such action.
(d) If the indemnification provided for in this Section
is unavailable or insufficient to hold harmless an indemnified
party under subsection (a) or (b) above, then each indemnifying
party shall contribute to the amount paid or payable by such
indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above (i) in such
proportion as is appropriate to reflect the relative benefits
received by the Corporation and the Issuer on the one hand and the
Underwriters on the other from the offering of the Securities or
(ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Corporation and the Issuer
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 as well as any other relevant
equitable considerations. The relative benefits received by the
Corporation and the Issuer 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 Corporation bear to the total underwriting discounts and
commissions received by the Underwriters from the Corporation under
this Agreement. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the
Corporation, the Issuer or the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity
to correct or prevent such untrue statement or omission. The amount
paid by an indemnified party as a result of the losses, claims,
damages or liabilities referred to in the first sentence of this
subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in
connection with any action or claim which is the subject of this
subsection (d). Notwithstanding the provisions of this subsection
(d), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the
Securities underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to
99
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 Corporation and the Issuer
under this Section shall be in addition to any liability which they
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 shall be in addition to any
liability which the respective Underwriter may otherwise have and
shall extend, upon the same terms and conditions, to each director
of the Corporation, to each officer of the Corporation who has
signed a Registration Statement and to each person, if any, who
controls the Corporation or the Issuer within the meaning of the
Act.
8. Default of Underwriter. If either Underwriter defaults in
its obligations to purchase Securities hereunder and arrangements
satisfactory to the other Underwriter and the Corporation for the
purchase of such Securities by other persons are not made within 36
hours after such default, this Agreement will terminate without
liability on the part of the nondefaulting Underwriter, the
Corporation or the Issuer, except as provided in Section 9. As used
in this Agreement, the term "Underwriter" includes any person
substituted for an Underwriter under this Section. Nothing herein
will relieve a defaulting Underwriter from liability for its
default.
9. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and
other statements of the Corporation or the Issuer or their
respective officers and of the several Underwriters set forth in or
made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the
results thereof, made by or on behalf of any Underwriter, the
Corporation, the Issuer or any of their respective representatives,
officers or directors or any controlling person, and will survive
delivery of and payment for the Securities. If this Agreement is
terminated pursuant to Section 8 or for any reason the purchase of
the Securities by the Underwriters is not consummated, the
Corporation shall remain responsible for the expenses to be paid or
reimbursed by it pursuant to Section 5 and the respective
obligations of the Corporation, the Issuer and the Underwriters
pursuant to Section 7 shall remain in effect. If the purchase of
the Securities by the Underwriters is not consummated for any
reason other than solely because of the termination of this
Agreement pursuant to Section 8 or the occurrence of any event
100
specified in clause (iii), (iv) or (v) of Section 6(c), the
Corporation will reimburse the Underwriters for all out-of-pocket
expenses (including fees and disbursements of counsel) incurred by
them in connection with the offering of the Securities.
10. Notices. All communications hereunder will be in writing
and, if sent to the Underwriters, will be mailed, delivered or
telegraphed and confirmed to them at their addresses furnished to
the Corporation in writing for the purpose of communications
hereunder or, if sent to the Corporation, will be mailed, delivered
or telegraphed and confirmed to it at 0000 Xxxx Xxxxxx, Xxxxxxxx,
Xxxxx Xxxxxxxx 00000, Attention: Chief Financial Officer.
11. Representation of Underwriters. Any action under this
Agreement taken by you jointly or by CSFBC will be binding upon
both of the Underwriters.
12. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective
successors and the controlling persons referred to in Section 7,
and no other person will have any right or obligation hereunder.
13. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one
and the same Agreement.
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14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
If the foregoing is in accordance with your understanding of
our agreement, kindly sign and return to the Corporation one of the
counterparts hereof, whereupon it will become a binding agreement
among the Corporation, the Issuer and the several Underwriters in
accordance with its terms.
Very truly yours,
SOUTH CAROLINA ELECTRIC & GAS COMPANY
By:
-------------------------------------
[Insert title]
SCE&G TRUST I
By:
-------------------------------------
[Insert title]
The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
AND PAINEWEBBER INCORPORATED, AS UNDERWRITERS
By: CREDIT SUISSE FIRST BOSTON CORPORATION
By:____________________________________________
[Insert title]
102
SCHEDULE A
LIQUIDATION
AMOUNT OF
FIRM SECURITIES
UNDERWRITER
Credit Suisse First Boston Corporation . . . . [$]
PaineWebber Incorporated . . . . . . . . . . .
Total . . . . . . . . . . . . . . . . . . [$]
103
