SOUTH CAROLINA ELECTRIC & GAS COMPANY
First Mortgage Bonds, % Series due
UNDERWRITING AGREEMENT
, 1995
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 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
Chemical Bank, successor to Central Hanover Bank and Trust Company,
as trustee, delivered to and held by the Trustee under the
Indenture as Supplemented. The Class A Mortgage constitutes,
subject to certain exceptions, a first mortgage lien on
substantially all of the public utility properties of the Company.
The Bonds shall be dated, shall mature, shall bear interest, shall
be payable and shall otherwise conform to the description thereof
to be contained in the Prospectus relating to the Bonds referred to
in Section 2(a) hereof and to the provisions of the Indenture as
Supplemented. No amendment to the Indenture as Supplemented is to
be made prior to the Closing Date hereinafter referred to unless
said amendment is first approved by you.
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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 or mail for
filing to the Commission a supplemented prospectus 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 such supplemented prospectus 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
are filed with the Commission, as the case may be, will conform in
all material respects to the requirements of the Exchange Act and
the rules and regulations of the Commission thereunder, and will
not contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make
the statements therein not misleading.
(c) When the Registration Statement became effective and at
all times subsequent thereto up to and at the Closing Date
(hereinafter defined), (i) the Registration Statement and
Prospectus and any post-effective amendments or supplements thereto
contained and will contain all statements and information which are
required to be stated therein by the Act, the Trust Indenture Act
and the rules and regulations of the Commission under such Acts,
and in all material respects, conformed and will conform to the
requirements thereof, and (ii) neither the Registration Statement
nor the Prospectus nor any post-effective amendment or supplement
thereto included or will include any untrue statement of a material
fact or omitted or will omit to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading; provided, however, that the foregoing representations
and warranties shall not apply to information contained in or
omitted from the Registration Statement or Prospectus or any such
amendment or supplement thereto in reliance upon, and in conformity
with, written information furnished to the Company by you, or by
any Underwriter through you, specifically for use in the
preparation thereof, or to any information relating to the book-
entry system of payments and transfers of the Bonds or the
depository therefor set forth under the caption "Book-Entry System"
provided by the Depository Trust Company or to any statements in or
omissions from the Statement of Eligibility (Form T-1) of the
Trustee.
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(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 and in good standing 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 does not own any shares of capital stock of
a "public utility company" or a "holding company" as such terms are
defined in the Public Utility Holding Company Act of 1935, as
amended, and is not a "holding company" or a "subsidiary" of a
"registered holding company" within the meaning of said Act. The
Company has no subsidiaries.
(g) The Bonds have been duly authorized and, when duly
executed, authenticated and issued as provided in the Indenture as
Supplemented and delivered pursuant to this Agreement, will
constitute valid and legally binding obligations of the Company
entitled to the security and benefits of the Indenture as
Supplemented, will be secured equally and ratably with all other
Bonds to be issued under the Indenture as Supplemented, and will
conform to the description thereof contained in the Prospectus.
The Indenture as Supplemented has been duly authorized, executed
and delivered by the Company and is a valid and legally binding
instrument in accordance with its terms. The Indenture as
Supplemented has been qualified under the Trust Indenture Act.
(h) The Indenture as Supplemented constitutes a legally
valid and directly enforceable mortgage lien (except to the extent
that enforcement of such lien may be limited by the effect of
certain laws and judicial decisions upon the remedies provided in
the Indenture as Supplemented, which, however, do not make the
remedies afforded inadequate for the practical realization of the
security and benefits provided by the Indenture as Supplemented,
and except as enforceability of such lien may be limited by
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and by
general equity principles) upon the respective properties subject
thereto (which properties constitute substantially all of the
electric utility properties of the Company) subject only to
Permitted Liens (as defined in the Indenture), the prior lien of
the Class A Mortgage and to minor defects and irregularities
customarily found in properties of like size and character which do
not materially impair the use of the property affected thereby in
the operations of the business of the Company, and the Indenture as
Supplemented conforms to the description thereof contained in the
Prospectus.
(i) Except as contemplated in the Prospectus, subsequent to
the respective dates as of which information is given in the
Registration Statement and the Prospectus, the Company has not
incurred any liabilities or obligations, direct or contingent, or
entered into any transactions,
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not in the ordinary course of business, which are material to the
Company and there has not been any material change in the capital
stock or long-term debt of the Company, or any material adverse
change, or any development which the Company has reasonable cause
to believe will involve a prospective material adverse change, in
the condition (financial or other), business, net worth or results
of operations of the Company.
(j) Except as set forth in the Prospectus, there is not
pending or, to the knowledge of the Company, threatened, any
action, suit or proceeding, to which the Company is a party, before
or by any court or governmental agency or body, which might result
in any material adverse change in the condition (financial or
other), business, net worth or results of operations of the Company
or might materially and adversely affect the properties or assets
thereof; and there are no contracts or documents of the Company
which are required to be filed as exhibits to the Registration
Statement by the Act or by the rules and regulations of the
Commission thereunder which have not been so filed.
(k) The Company holds good and marketable title in fee
simple, except as otherwise stated in the Prospectus, to all of the
real property referred to therein as being owned by it, free and
clear of all liens and encumbrances, except liens and encumbrances
referred to in the Prospectus (or reflected in the financial
statements included therein) and liens and encumbrances which are
not material in the aggregate and do not materially interfere with
the conduct of the business of the Company and the properties
referred to in the Prospectus as held under lease by the Company
are held by it under valid and enforceable leases with such
exceptions as do not materially interfere with the conduct of the
business of the Company.
(l) The Class A Bonds which heretofore or on the date
hereof have been issued or on the closing date shall have been
issued to the Trustee under the Indenture as Supplemented as the
basis for the issuance of the Bonds have been duly authorized,
executed, authenticated and delivered to the Trustee under the
Indenture as Supplemented, constitute valid and legally binding
obligations of the Company, entitled to the security and benefits
of the Class A Mortgage, and are equally and ratably issued with
all other bonds issued under the Class A Mortgage.
(m) The Class A Mortgage constitutes a legally valid and
directly enforceable first mortgage lien (except to the extent that
enforcement of such lien may be limited by the effect of certain
laws and judicial decisions upon the remedies provided in the Class
A Mortgage, which, however, do not make the remedies afforded
inadequate for the practical realization of the security and
benefits provided by the Class A Mortgage, and except as
enforceability of such lien may be limited by bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and by general equity
principles) upon the respective properties subject thereto (which
properties constitute substantially all of the utility properties
of the Company) subject only to excepted encumbrances (as defined
therein) and to minor defects and irregularities customarily found
in properties of like size and character, which do not materially
impair the use of the property affected thereby in the operation of
the business of the Company, and the Class A Mortgage conforms to
the description thereof contained in the Prospectus.
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(n) The performance of this Agreement and the consummation
of the transactions herein contemplated will not result in a breach
or violation of any of the terms and provisions of, or constitute
a default under, any statute, indenture, mortgage, deed of trust,
note agreement or other agreement or instrument to which the
Company is a party or by which it is bound or to which any of the
property of the Company is subject, the Company's Restated Articles
of Incorporation, as amended, or by-laws, or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its properties; no consent,
approval, authorization or order of any court or governmental
agency or body is required for the consummation of the transactions
contemplated by this Agreement in connection with the issuance or
sale of the Bonds by the Company hereunder, except such as may be
required under the Act, the Trust Indenture Act or state securities
laws and except for the approval of The Public Service Commission
of South Carolina which has been obtained or will be obtained prior
to the Closing Date and is or will be in full force and effect; and
the Company has full power and authority to authorize, issue and
sell the Bonds on the terms and conditions herein set forth.
3. Purchase, Sale and Delivery of the Bonds. On the basis of
representations, warranties and agreements herein contained, but
subject to the terms and conditions herein set forth, the Company
agrees to issue and sell to the several Underwriters named in
Schedule A hereto, and each such Underwriter agrees, severally and
not jointly, to purchase from the Company at the purchase price set
forth in such Schedule A the principal amount of Bonds set forth
opposite the name of such Underwriter in such Schedule A.
The Bonds will be delivered by the Company to you (1) for the
accounts of the several Underwriters at the office of Reid & Priest
LLP, 40 West 57th Street, New York, New York, against payment of
the purchase price therefor by certified or official bank check
payable in New York Clearing House (next day) funds at 10:00 A.M.,
New York City Time, on (or, if the New York and
American Stock Exchanges and commercial banks in The City of New
York are not open on such day, the next day on which such exchanges
and banks are open), or at such other time not later than eight
full business days thereafter as you and the Company determine,
such time being herein referred to as the "Closing Date."
It is understood that you, individually and not as
Representatives of the Underwriters, may (but shall not be
obligated to) make payment to the Company, on behalf of any
Underwriter or Underwriters, for the Bonds to be purchased by such
Underwriter or Underwriters. Any such payment by you shall not
relieve any such Underwriter or Underwriters of any of its or their
obligations hereunder.
(1) To be revised if bonds are to be deposited with DTC pursuant to
a book-entry system of payments and transfers.
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
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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 of or any proceeding for that purpose having
been instituted or threatened by the Commission; and it will
promptly use its best efforts to prevent the issuance of any stop
order or to obtain its withdrawal if such a stop order should be
issued.
(c) Within the time during which a prospectus relating to
the Bonds is required to be delivered under the Act, the Company
will comply as far as it is able with all requirements imposed upon
it by the Act, as now and hereafter amended, and by the rules and
regulations of the Commission thereunder, as from time to time in
force, so far as necessary to permit the continuance of sales of or
dealings in the Bonds as contemplated by the provisions hereof and
the Prospectus. If during such period any event occurs as a result
of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the
light of the circumstances then existing, not misleading, or if
during such period it is necessary to amend or supplement the
Prospectus to comply with the Act or to file under the Exchange Act
any document incorporated by reference in the Prospectus in order
to comply with the Act or the Exchange Act, the Company will
promptly notify you and, if such event occurs within nine months
after the date hereof, the Company will at its own cost and expense
amend or supplement the Prospectus in order to correct such
statement or omission and in order that the Prospectus as so
amended or supplemented will comply with the requirements of
Section 10(a)(1) of the Act or file such document to effect such
compliance. In case any Underwriter is required to deliver a
Prospectus relating to the Bonds at any time nine months or more
after the date hereof, the Company will, at the expense of the
Underwriter requesting the same, prepare promptly such prospectus
or prospectuses and thereafter amend or supplement the same as may
be necessary to permit compliance with the requirements of Section
10(a)(3) of the Act.
(d) The Company will use its best efforts to qualify the
Bonds for sale under the securities laws of such jurisdictions as
you reasonably designate and to continue such qualifications in
effect so long as required for the distribution of the Bonds,
except that the Company shall not be required in connection
therewith to qualify as a foreign corporation or to execute a
general consent to service of process in any state. The Company
will also arrange for the determination of the Bonds' eligibility
for investment under the laws of such jurisdictions as you
reasonably request.
(e) The Company has furnished or will furnish to the
Underwriters, as soon as available, copies of the Registration
Statement ( 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.
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(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 earning statement (which need not be audited) covering
a twelve-month period beginning after the effective date of the
Registration Statement which shall satisfy the provisions of
Section 11(a) of the Act.
(g) So long as any of the Bonds are outstanding, the
Company agrees to furnish to you, and, upon request, to each of the
other Underwriters, (i) as soon as they are available, copies of
all the reports (financial or other) and any definitive proxy
statements mailed to security holders or filed with the Commission
and (ii) from time to time such other information concerning the
business and financial condition of the Company as you may
reasonably request.
(h) The Company, whether or not the transactions
contemplated hereunder are consummated or this Agreement is
prevented from becoming effective or is terminated under the
provisions of Section 9 hereof, will pay all costs and expenses
incident to the performance of the obligations of the Company
hereunder, including, without limitation, the fees and expenses of
the Company's accountants and counsel for the Company, all costs
incident to the preparation, printing and filing under the Act of
the Registration Statement, the Prospectus and all amendments and
supplements thereto, any fees charged by any investment rating
agencies for rating the Bonds, all fees and disbursements incurred
by the Company and by the Underwriters in connection with the
qualification of the Bonds under the laws of various jurisdictions
as provided in Section 4(d) hereof and the determination of their
eligibility for investment under the laws of various jurisdictions
(including the cost of furnishing to the Underwriters memoranda
relating thereto and the reasonable fees and disbursements of
counsel for the Underwriters in connection therewith), the cost of
furnishing to the Underwriters copies of the Registration
Statement, the Prospectus and each amendment and supplement
thereto, in such numbers as you may reasonably request, the cost of
printing this Agreement, the costs and charges of the Trustee and
of any depository in connection with a book-entry system of
payments and transfers, and the cost of preparing the Bonds. If
the sale of the Bonds provided for herein is not consummated by
reason of any failure, refusal or inability on the part of the
Company to perform any agreement on its part to be performed, or
because any other condition of the Underwriters' obligation
hereunder required to be fulfilled by the Company is not fulfilled,
the Company will reimburse the several Underwriters for all
reasonable out-of-pocket disbursements (including fees and
disbursements of counsel) incurred by the Underwriters in
connection with their investigation, preparing to market and
marketing the Bonds or in contemplation of performing their
obligations hereunder. The Company shall not in any event be
liable to any of the Underwriters for loss of anticipated profits
from the transactions covered by this Agreement.
(i) The Company will apply the net proceeds from the sale
of the Bonds to be sold by it hereunder for the purposes set forth
under "Use of Proceeds" in the Prospectus.
(j) The Company will not for a period of 30 days after the
commencement of the public offering of the Bonds, without the prior
written consent of the Representatives, sell, contract to sell or
otherwise dispose of any other of its First Mortgage Bonds.
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:
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(a) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceeding for
that purpose shall have been instituted or, to the knowledge of the
Company or any Underwriter, threatened by the Commission; and any
request of the Commission for additional information (to be
included in the Registration Statement or the Prospectus or
otherwise) shall have been complied with to your satisfaction.
(b) No Underwriter shall have advised the Company that the
Registration Statement or Prospectus, or any amendment or
supplement thereto, contains an untrue statement of fact which in
your opinion is material or omits to state a fact which in your
opinion is material and is required to be stated therein or is
necessary to make the statements therein not misleading.
(c) Except as contemplated in the Prospectus, subsequent to
the respective dates as of which information is given in the
Registration Statement and the Prospectus, there shall not have
been any change in the capital stock or long-term debt of the
Company or any adverse change, or any development involving a
prospective adverse change, in the condition (financial or other),
business, net worth or results of operations of the Company which,
in your judgment, makes it impractical or inadvisable to offer or
deliver the Bonds on the terms and in the manner contemplated in
the Prospectus.
(d) On the Closing Date, you shall have received the
opinion of McNair and Sanford, P.A., counsel for the Company, dated
the Closing Date, to the effect that:
(i) The Company is validly existing as a corporation
in good standing under the laws of the State of South Carolina and
is empowered by its Restated Articles of Incorporation, as amended,
to own and operate the properties now owned and proposed to be
owned by it and to carry on its business as now carried on and
proposed to be carried on as described in the Prospectus.
(ii) Each of the Indenture as Supplemented and the
Class A Mortgage has been duly authorized, executed and delivered
by the Company and constitutes a valid and legally binding
instrument enforceable against the Company in accordance with its
terms and the Indenture as Supplemented has been qualified under
the Trust Indenture Act.
(iii) The Class A Bonds which heretofore or on the date
hereof have been issued to the Trustee under the Indenture as
Supplemented as the basis for the issuance of the Bonds have been
duly authorized by all necessary corporate action, have been duly
executed, authenticated, issued and delivered and constitute valid
and legally binding obligations of the Company enforceable against
the Company in accordance with their terms and the terms of the
Class A Mortgage, are entitled to the security and benefits of the
Class A Mortgage and are secured equally and ratably with all other
bonds issued under the Class A Mortgage.
(iv) The Bonds have been duly authorized by all
necessary corporate action, have been duly executed, authenticated,
issued and delivered and constitute valid and legally binding
obligations of the Company enforceable against the Company in
accordance with their terms and the terms of the Indenture as
Supplemented, are entitled to the security and benefits of the
Indenture as Supplemented and are secured equally and ratably with
all other bonds issued under the Indenture as Supplemented.
(v) This Agreement has been duly authorized, executed
and delivered by the Company.
(vi) The Indenture as Supplemented, the Bonds and the
Class A Mortgage conform in all material respects to the statements
concerning them in the Prospectus.
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(vii) The documents incorporated by reference in the
Prospectus (other than the financial statements and other financial
or statistical data contained therein, as to which such counsel
need express no opinion), when they were filed with the Commission
complied as to form in all material respects with the requirements
of the Exchange Act and the rules and regulations of the Commission
thereunder; and, based upon such counsel's participation in
conferences with representatives of the Company and its accountants
and participation in certain prior financings of the Company, they
have no reason to believe that any of such documents, when they
were so filed, contained an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made when such documents were so filed, not misleading.
(viii) The Registration Statement has become effective
under the Act, and, to the best of the knowledge of such counsel,
no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have
been instituted or are pending or contemplated under the Act, and,
based upon such counsel's participation in conferences with
representatives of the Company and its accountants and
participation in certain prior financings of the Company, they do
not believe that on the date hereof or the Closing Date either the
Registration Statement or the Prospectus (or the Registration
Statement or Prospectus as amended or supplemented by any amendment
or further supplement thereto made by the Company prior to the
Closing Date) contained or contains any untrue statement of a
material fact or omitted or omits to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, and, in their opinion, the Registration
Statement and the Prospectus, as of the date hereof (or the
Registration Statement or Prospectus as amended or supplemented by
any amendment or further supplement thereto made by the Company
prior to the Closing Date), appear on their face to be
appropriately responsive in all material respects to the
requirements of the Act, the Trust Indenture Act and the rules and
regulations of the Commission under such acts (except that no
opinion need be expressed as to financial statements and other
financial or statistical data contained or incorporated by
reference in the Registration Statement or to any information
relating to the book-entry system of payments and transfers of the
Bonds or the depository therefor set forth under the caption "Book-
Entry System" provided by the Depository Trust Company or as to the
Trustee's Statement of Eligibility on Form T-1).
In rendering said opinion, (i) counsel may rely upon the
opinion of Asbury H. Gibbes, Esquire, delivered pursuant to
paragraph (e), with respect to matters of title, property
descriptions, recording fees and taxes and the filing, recordation
and liens of the Indenture as Supplemented and the Class A
Mortgage; (ii) counsel may state that the enforceability of the
Class A Mortgage, the Class A Bonds, the Indenture as Supplemented
and the Bonds is subject to applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the rights of
creditors generally and general principles of equity; and (iii)
counsel may state that although certain provisions of the Class A
Mortgage and the Indenture as Supplemented may not be enforceable
in whole or in part, the inclusion of such provisions does not
affect the validity of the Class A Mortgage or Indenture as
Supplemented, which contain adequate provisions for the practical
realization of the benefits and security provided therefor.
(e) On the Closing Date, you shall have received the
opinion of Asbury H. Gibbes, Esquire, General Counsel of SCANA
Corporation, 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
33
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.
34
(v) Except as otherwise set forth in the Prospectus,
the Company has such valid franchises, certificates of convenience
and necessity, operating rights, licenses, permits, consents,
approvals, authorizations and/or orders of governmental bodies,
political subdivisions or regulatory authorities, free from
burdensome restrictions, as are necessary for the acquisition,
construction, ownership, maintenance and operation of the
properties now owned by it and the conduct of the business now
carried on by it as described in the Registration Statement and
Prospectus, and the Company is not in default or violation of any
thereof and is carrying on its business in accordance therewith
and, to the best of his knowledge, with all applicable federal,
state and other laws and regulations.
(vi) The descriptions in the Registration Statement and
Prospectus of statutes, legal and governmental proceedings,
contracts and other documents are, to the best of his knowledge,
accurate and fairly present the information required to be shown
therein, and such counsel does not know of any legal or
governmental proceedings required to be described in the Prospectus
which are not described as required, nor of any contracts or
documents of a character required to be described in the
Registration Statement or Prospectus or required to be incorporated
by reference into the Prospectus or to be filed as exhibits to the
Registration Statement which are not described or incorporated by
reference or filed as required.
(vii) An order has been or orders have been entered by
The Public Service Commission of South Carolina permitting the
issuance and sale of the Bonds as contemplated hereby, and no
further authorization or consent of any public body or board is
required for the issuance and sale by the Company of the Bonds as
contemplated hereby, except as may be required under state
securities or Blue Sky laws.
(viii) The statements in the Prospectus which are stated
therein to have been made on the authority of such counsel have
been reviewed by such counsel and, as to matters of law and legal
conclusions, are correct in all material respects.
(ix) The consummation of the transactions contemplated
herein and the fulfillment of the terms hereof and compliance by
the Company with all terms and provisions of the Indenture as
Supplemented and the Class A Mortgage will not result in a breach
of any of the terms or provisions of, or constitute a default
under, any statute, indenture, mortgage, deed of trust, note
agreement or other agreement or instrument known to such counsel to
which the Company is a party or by which it is bound or to which
any of the property of the Company is subject, or the Restated
Articles of Incorporation, as amended, or by-laws of the Company,
or to the best of his knowledge, any order, rule or regulation
applicable to the Company of any court or of any federal or state
regulatory body or administrative agency or other governmental body
having jurisdiction over the Company or its property.
(x) All recording fees and taxes applicable to or in
connection with the recording of the Class A Mortgage and the
Indenture as Supplemented and all applicable taxes on or in
connection with the issuance of the Bonds have been paid.
35
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 Reid
& 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
Asbury H. Gibbes, Esquire referred to above as to all matters
governed by South Carolina law.
(g) On the Closing Date, you shall have received a letter
from Deloitte & Touche LLP, dated the date of delivery thereof, in
the form heretofore delivered to the Representatives.
(h) On the Closing Date, you shall have received from the
Company a certificate, signed by its Chairman, President or a Vice
President and by its principal financial or accounting officer,
dated the Closing Date, to the effect that, to the best of their
knowledge based on reasonable investigation:
(i) The representations and warranties of the Company
in this Agreement are true and correct in all material respects, as
if made on and as of the Closing Date, and the Company has complied
with all the agreements and satisfied all the conditions on its
part to be performed or satisfied on or prior to the Closing Date;
(ii) No stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceedings for that
purpose have been instituted or are pending or threatened, under
the Act;
(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
36
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; and
(iv) As of the date of such certificate, the real and
personal property owned by the Company and located in the State of
Georgia does not have an aggregate depreciated cost, as reflected
in the accounting records of the Company, in excess of $5,000,000.
(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 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 good standing and upon certificates of officers of the
Company as to matters of fact relevant to such opinions and may
assume (i) that the Bonds have been executed on behalf of the
Company by the manual or facsimile signatures of the President or
a Vice President and the Secretary or an Assistant Secretary of the
Company and have been duly authenticated by the Trustee and (ii)
that the signatures on all documents examined by them are genuine.
6. Indemnification. (a) The Company will indemnify and hold
harmless each Underwriter against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become
subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Registration
Statement, the Prospectus, or any amendment or supplement thereto,
or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; and will
reimburse each Underwriter for any legal or other expenses
reasonably incurred by it in connection with investigating or
defending against such loss, claim, damage, liability or action;
provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in the
Registration Statement, the Prospectus, or any such amendment or
supplement, in reliance upon and in conformity with written
information furnished to the Company by you, or by any Underwriter
through you, specifically for use in the preparation thereof.
37
(b) Each Underwriter will indemnify and hold harmless the
Company against any losses, claims, damages or liabilities to which
the Company may become subject, under the Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact
contained in the Registration Statement, the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon
the omission or the alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but
only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in the
Registration Statement, the Prospectus, or any such amendment or
supplement, in reliance upon and in conformity with written
information furnished to the Company by you, or by such Underwriter
through you, specifically for use in the preparation thereof; and
will reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating
or defending against any such loss, claim, damage, liability or
action.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect thereof
is to be made against the indemnifying party under such subsection,
notify the indemnifying party in writing of the commencement
thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any
indemnified party otherwise than under such subsection. In case
any such action shall be brought against any indemnified party, and
it shall notify the indemnifying party of the commencement thereof,
the indemnifying party shall be entitled to participate in and, to
the extent that it shall wish, jointly with any other indemnifying
party, similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (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 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.
(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
38
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 amount by which the total price at which the Bonds
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 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 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
39
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
40
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 1426 Main Street,
Columbia, South Carolina 29201. 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 below. 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.
41
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...................................
L. M. Gressette, Jr.
Chief Executive Officer
ACCEPTED at New York, New York as of the date
first above written.
By...................................
42
EXHIBIT 1
SCHEDULE A
UNDERWRITERS
Series due
Name of Amount of Bonds
Underwriters to be Purchased
$
%
plus
accrued interest
from
43