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Exhibit
1.01
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SCANA
Corporation
$250,000,000
Medium
Term Notes due April 1, 2020
Banc
of America Securities LLC
Hearst
Tower
214
North Tryon Street
Charlotte,
North Carolina 28255
BB&T
Capital Markets,
a
division of Scott & Stringfellow, Inc.
909
East Main Street, 8 th
Floor
Richmond,
Virginia 23219
UBS
Securities LLC
677
Washington Boulevard
Stamford,
Connecticut 06901
Selling
Agency Agreement
March 5,
2008
New
York, New York
Dear
Ladies and Gentlemen:
The
undersigned SCANA Corporation, 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 “Agents”).
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 Agents in addition to
yourselves, you represent that you have been authorized by
each of the Agents 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 Agents other than
yourselves, the term “Agents” shall be deemed to
mean the Representatives. All obligations of the
Agents hereunder are several and not joint.
The
Company confirms its agreement with each of you as evidenced
by this Agreement with respect to the issue and sale by the
Company of $250,000,000 aggregate principal amount of its
Medium Term Notes due April 1, 2020 (the
“Notes”). The Notes will be issued under an
indenture (the “Indenture”) dated as of November
1, 1989 between the Company and The Bank of New York Trust
Company, N.A., as trustee (the
“Trustee”). No amendment to the
Indenture is to be made prior to the Closing Date (as
hereinafter defined) unless the amendment is approved by the
Representatives. The Notes will be issued in fully
registered form in minimum denominations of $1,000 and in
denominations exceeding such amount by integral multiples of
$1,000, and will have the annual interest rates, maturities
and other terms set forth in the Disclosure Package (as
hereinafter defined) or the Prospectus (as hereinafter
defined) and shall otherwise conform to the provisions of the
Indenture. The Notes will be issued, and the terms thereof
established, in accordance with the Indenture.
1.
Representations
and Warranties . The Company represents and
warrants to, and agrees with, each Agent that:
(a) The
Company has prepared and filed with the Securities and
Exchange Commission (the “Commission”) a
registration statement on Form S-3 (File No. 333-145208),
which contains a base prospectus (the “Base
Prospectus”) to be used in connection with the public
offering and sale of the Notes. Such registration
statement, as amended, including the financial statements,
exhibits and schedules thereto, at each time of effectiveness
under the Securities Act of 1933, as amended, and the rules
and regulations promulgated thereunder (collectively, the
“Act”), including any required information deemed
to be a part thereof at the time of effectiveness pursuant to
Rule 430B under the Act or the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated
thereunder (collectively, the “Exchange Act”), is
called the “Registration
Statement.” The Company has prepared and
filed with the Commission a prospectus supplement to the Base
Prospectus (the Base Prospectus as so supplemented, the
“Supplemented Base Prospectus”). The
term “Prospectus” shall mean the final pricing
supplement relating to the Notes, together with the
Supplemented Base Prospectus, that is first filed pursuant to
Rule 424(b) after the date and time that this Agreement is
executed and delivered by the parties hereto (the
“Execution Time”). Any reference herein
to the Registration Statement, the Supplemented Base
Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein (the
“Incorporated Documents”); any reference to any
amendment or supplement to the Supplemented Base Prospectus or
the Prospectus shall be deemed to refer to and include any
Incorporated Documents filed after the date of such
Supplemented Base Prospectus or Prospectus, as the case may
be, under the Exchange Act, and incorporated by reference in
such Supplemented Base Prospectus or Prospectus, as the case
may be; and any reference to any amendment to the Registration
Statement shall be deemed to refer to and include any document
of the Company filed pursuant to Section 13(a) or 15(d) of the
Exchange Act after the effective date of the Registration
Statement that is incorporated by reference in the
Registration Statement. All references in this
Agreement to the Registration Statement, the Supplemented Base
Prospectus, the Prospectus, or any amendments or supplements
to any of the foregoing, shall include any copy thereof filed
with the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval System
(“EDGAR”).
(b) The
Registration Statement (i) is an “automatic shelf
registration statement” as defined in Rule 405 under the
Act and (ii) initially became effective not earlier than three
years prior to the Closing Date (hereinafter defined), and the
Company has not received any notice of objection of the
Commission to the use of the Registration Statement or any
post-effective amendment thereto pursuant to Rule 401(g)(2)
under the Act. The Registration Statement has been
prepared by the Company in conformity with the requirements of
the Act and the Trust Indenture Act of 1939, as amended, and
the rules and regulations promulgated thereunder (the
“Trust Indenture Act”). When the
Registration Statement initially became effective and at all
times subsequent thereto up to and on the Closing Date
(hereinafter defined), (y) the Registration Statement and
Prospectus and any post-effective amendments or supplements
thereto contained and will contain all statements and
information that are required to be stated therein by the Act
and the Trust Indenture Act and in all material respects,
conformed and will conform to the requirements thereof; and
(z) 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 Agent through you,
specifically for use in the preparation thereof, or to any
statements in or omissions from the Statement of Eligibility
(Form T-1) of the Trustee or to any information relating to
the book-entry system of payments and transfers of the Notes
or the depository therefor set forth under the caption
“Book-Entry System” provided by The Depository
Trust Company. A copy of such Registration
Statement and any amendments thereto heretofore filed
(including all exhibits except those incorporated therein by
reference) have heretofore been delivered to
you. The Company will file with the Commission the
Prospectus relating to the Notes pursuant to Rule 424 under
the Act.
(c) The
term “Disclosure Package” shall mean (i) the
Supplemented Base Prospectus, as amended or supplemented, (ii)
the “issuer free writing prospectuses” as defined
in Rule 433 of the Act (each, an “Issuer Free Writing
Prospectus”), if any, identified in Schedule C hereto,
(iii) any other free writing prospectus that the parties
hereto shall hereafter expressly agree in writing to treat as
part of the Disclosure Package and (iv) the Final Term Sheet
(as defined herein), which also shall be identified in
Schedule C hereto. As of 5:30 p.m. (Eastern time)
on the date of this Agreement (the “Applicable
Time”), the Disclosure Package did not contain an untrue
statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however,
that the foregoing representations and warranties shall not
apply to information contained in or omitted from the
Disclosure Package in reliance upon, and in conformity with,
written information furnished to the Company by you, or by any
Agent 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 Notes or the
depository therefor set forth under the caption
“Book-Entry System” provided by The Depository
Trust Company.
(d) At
the Execution Time (with such date being used as the
determination date for purposes of this sentence), the Company
was and is a “well-known seasoned issuer” as
defined in Rule 405 of the Act.
(e) (i)
At the earliest time after the filing of the Registration
Statement relating to the Notes that the Company or another
offering participant made a bona fide offer
(within the meaning of Rule 164(h)(2) of the Act) of the Notes
and (ii) as of the Execution Time (with such date being used
as the determination date for purposes of this clause (ii)),
the Company was not and is not an “ineligible
issuer” (as defined in Rule 405 of the Act), without
taking account of any determination by the Commission pursuant
to Rule 405 of the Act that it is not necessary that the
Company be considered an “ineligible
issuer”.
(f) Neither
any Issuer Free Writing Prospectus nor the Final Term Sheet,
as of their respective issue dates and at all subsequent times
during the Prospectus Delivery Period (as defined herein) or
until any earlier date that the Company notified or notifies
the Representatives as described in the next sentence, did
not, does not and will not include any information that
conflicted, conflicts or will conflict with the information
contained in the Registration Statement, the Disclosure
Package or the Prospectus, including any document incorporated
by reference therein that has not been superseded or
modified. If at any time following the issuance of
an Issuer Free Writing Prospectus there occurred or occurs an
event or development as a result of which such Issuer Free
Writing Prospectus conflicted or would conflict with the
information contained in the Registration Statement, the
Disclosure Package or the Prospectus, the Company has promptly
notified or will promptly notify the Representatives and has
promptly amended or supplemented or will promptly amend or
supplement, at its own expense, such Issuer Free Writing
Prospectus to eliminate or correct such conflict.
(g) The
Company has not distributed and will not distribute, prior to
the later of the Closing Date and the completion of the
Agents’ distribution of the Notes, any written offering
material in connection with the offering and sale of the Notes
other than the Supplemented Base Prospectus, the Prospectus,
any Issuer Free Writing Prospectus reviewed and consented to
by the Representatives and included in Schedule C hereto or
the Registration Statement.
(h) The
Notes have been duly authorized and, when duly executed,
authenticated and issued as provided in the Indenture and
delivered pursuant to this Agreement, will constitute valid
and legally binding obligations of the Company, enforceable
against the Company in accordance with their terms (except to
the extent that enforceability may be limited by bankruptcy,
insolvency, reorganization and other laws of general
applicability relating to or affecting creditors’ rights
and by general equity principles) and entitled to the security
and benefits of the Indenture, and will conform to the
description thereof contained in the Disclosure Package and
the Prospectus. The Indenture has been duly
qualified under the Trust Indenture Act and has been duly
authorized, executed and delivered by the Company and is a
legal, valid and binding agreement of the Company enforceable
against the Company in accordance with its terms (except to
the extent that enforceability of such agreement may be
limited by bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting
creditors’ rights and by general equity principles), and
the Indenture conforms to the description thereof contained in
the Disclosure Package and the Prospectus.
(i) Each
of the Company; South Carolina Electric & Gas Company;
Public Service Company of North Carolina, Incorporated; SCANA
Energy Marketing, Inc.; and any
other “significant subsidiary” within the meaning
of Rule 405 of the Act (individually a
“Subsidiary” and collectively the
“Subsidiaries”) has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the jurisdiction in which it is chartered or
organized, with full corporate power and authority to own and
operate the properties now or proposed to be owned by it and
to conduct its business as now being or proposed to be
conducted by it, in each case as described in the Disclosure
Package and the Prospectus, and is duly licensed or qualified
to do business as a foreign corporation and is in good
standing under the laws of each jurisdiction which requires
such licensing or qualification wherein it owns or leases
material properties or conducts material
business.
(j) All
the outstanding shares of capital stock of each Subsidiary
have been duly and validly authorized and issued and are fully
paid and nonassessable, and, except as otherwise set forth in
the Disclosure Package and the Prospectus, all outstanding
shares of capital stock of the Subsidiaries are owned by the
Company either directly or through wholly owned subsidiaries
free and clear of any perfected security interest and, to the
knowledge of the Company, after due inquiry, any other
security interests, claims, liens or
encumbrances.
(k) The
Company’s authorized equity capitalization is as set
forth in the Registration Statement.
(l) The
Company is not, and after giving effect to the offering and
sale of the Notes and the application of the proceeds thereof
as described in the Disclosure Package and the Prospectus,
will not be, an “investment company” or a company
“controlled” by an “investment
company” that is required to be registered under the
Investment Company Act of 1940, as amended.
(m) This
Agreement has been duly authorized, executed and delivered by
the Company.
(n) Except
as set forth in the Disclosure Package and the Prospectus,
since the respective most recent dates as of which information
is given in the Disclosure Package and the Prospectus
(exclusive of any amendments or supplements after the date
hereof), the Company has not incurred any liabilities or
obligations, direct or contingent, or entered into any
transactions, not in the ordinary course of business, which
are material to the Company, and there has not been any
material change in the capital stock or long-term debt of the
Company, or any material adverse change, or any development
which the Company has reasonable cause to believe will involve
a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, business, net
worth or results of operations of the Company, from that set
forth in the Disclosure Package and the Prospectus (exclusive
of any amendments or supplements thereto subsequent to the
date of this Agreement) (a “Material Adverse
Effect”).
(o) The
Incorporated Documents, when they became effective or were
filed with the Commission, as the case may be, conformed in
all material respects to the requirements of the Exchange Act
and the rules and regulations of the Commission thereunder at
that time, and none of such documents contained an untrue
statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances
under which they were made, not misleading; and any further
documents so filed and incorporated by reference, when they
become effective or are filed with the Commission, as the case
may be, will conform in all material respects to the
requirements of the Exchange Act and the rules and regulations
of the Commission thereunder, and will not contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which
they were made, not misleading.
(p) The
consolidated financial statements of the Company incorporated
by reference in the Disclosure Package and the Prospectus
fairly present the financial condition of the Company as of
the dates indicated and the results of operations, cash flows
and changes in common equity for the periods therein
specified; and said financial statements have been prepared in
accordance with accounting principles generally accepted in
the United States of America (“U.S. GAAP”),
applied on a consistent basis (except as otherwise noted in
such financial statements) throughout the periods
involved. Deloitte & Touche LLP, who have
audited such financial statements, as set forth in their
report with respect to such financial statements, are
independent registered public accountants with respect to the
Company as required by the Act and the rules and regulations
of the Commission thereunder.
(q) Except
as set forth in the Disclosure Package and the Prospectus,
there is not pending or, to the knowledge of the Company,
threatened, any action, suit or proceeding, to which the
Company is a party, before or by any court or governmental
agency or body, which might result in a Material Adverse
Effect. There are no contracts or documents of the
Company that are required to be filed as exhibits to the
Registration Statement by the Act or by the rules and
regulations of the Commission thereunder that have not been so
filed.
(r) The
performance of this Agreement and the consummation of the
transactions herein contemplated will not result in a breach
or violation of any of the terms and provisions of, or
constitute a default under, any indenture, mortgage, deed of
trust, note agreement or other agreement or
instrument to which the Company is a party or by which it is
bound or to which any of the property of the Company is
subject, the Company’s Restated Articles of
Incorporation, as amended, or by-laws, or any statute, law,
rule, regulation, order or decree of any court or governmental
agency or body having jurisdiction over the Company or any of
its properties; no consent, approval, authorization or order
of any court or governmental agency or body is required for
the consummation of the transactions contemplated by this
Agreement in connection with the issuance or sale of the Notes
by the Company hereunder, except such as may be required under
the Act, the Trust Indenture Act or state
securities laws, and the Company has full power and authority
to authorize, issue and sell the Notes on the terms and
conditions herein set forth.
(s) The
Company maintains systems of internal accounting controls
sufficient to provide reasonable assurance that transactions
are executed in accordance with management’s general or
specific authorizations, transactions are recorded as
necessary to permit preparation of financial statements in
conformity with U.S. GAAP and to maintain asset
accountability, access to assets is permitted only in
accordance with management’s general or specific
authorizations, and the recorded accountability for assets is
compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any
differences.
(t) Except
as set forth in the Disclosure Package and the Prospectus,
since the end of the Company’s most recent audited
fiscal year, there has been (i) no material weakness in the
Company’s internal control over financial reporting
(whether or not remediated) and (ii) no change in the
Company’s internal control over financial reporting that
has materially affected, or is reasonably likely to materially
affect, the Company’s internal control over financial
reporting.
(u) The
Company maintains disclosure controls and procedures (as such
term is defined in Rule 13a-15(e) under the Exchange Act) that
comply with the requirements of the Exchange Act; such
disclosure controls and procedures have been designed to
ensure that material information relating to the Company is
made known to the Company’s principal executive officer
and principal financial officer by others within those
entities; and such disclosure controls and procedures are
effective.
(v) To
the best of its knowledge, the Company is in compliance in all
material respects with the applicable provisions of the
Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley
Act”) that are effective and the rules and regulations
of the Commission that have been adopted and are effective
thereunder.
Any
certificate signed by an officer of the Company and delivered
to one or more Representatives or to counsel for the
Representatives in connection with the offering of the Notes
shall be deemed a representation and warranty by the Company
to the Agents as to the matters covered thereby on the date of
such certificate.
2.
Purchase, Sale
and Delivery of the Notes . 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 Agents named
in Schedule A hereto, and each such Agent agrees, severally
and not jointly, to purchase from the Company at the initial
purchase price set forth in Schedule B hereto the principal
amount of Notes set forth opposite the name of such Agent in
Schedule A. Any Note sold to an Agent may be resold
by such Agent at varying prices from time to
time. In connection with any resale of Notes
purchased, an Agent may use a selling or dealer group and may
reallow any portion of the discount or commission payable
pursuant hereto to dealers or purchasers.
The
closing of the transactions and delivery of the documents
contemplated hereby shall take place at the office, date and
time specified in Schedule B. The Notes will be
delivered by the Company to you for the accounts of the
several Agents through the facilities of The Depository Trust
Company against payment of the purchase price therefor by wire
transfer in federal (same day) funds at the closing date and
time specified in Schedule B (or, if the New York and American
Stock Exchanges and commercial banks in The City of New York
are not open on such day, the next day on which such exchanges
and banks are open), or at such other time not later than
eight full business days thereafter as you and the Company
determine, such time being herein referred to as the
“Closing Date.”
It
is understood that you, individually and not as
Representatives of the Agents, may (but shall not be obligated
to) make payment to the Company, on behalf of any Agent or
Agents, for the Notes to be purchased by such Agent or
Agents. Any such payment by you shall not relieve
any such Agent or Agents of any of its or their obligations
hereunder.
3.
Agreements
. The Company covenants and agrees with each Agent
that:
(a) During
the period beginning at the Applicable Time and ending on the
later of the Closing Date or such date the Prospectus is no
longer required by law to be delivered in connection with
sales by an Agent or dealer, including circumstances where
such requirement may be satisfied pursuant to Rule 172 of the
Act (the “Prospectus Delivery Period”), prior to
amending or supplementing the Registration Statement, the
Disclosure Package or the Prospectus (including any amendment
or supplement through incorporation by reference of any report
filed under the Exchange Act), the Company shall furnish to
the Representatives for review a copy of each such proposed
amendment or supplement; the Company shall not file or use any
such proposed amendment or supplement to which the
Representatives reasonably object (except for any amendment or
supplement through incorporation by reference of any report
filed under the Exchange Act); the Company will notify you
promptly of any request by the Commission for the amending or
supplementing of the Registration Statement, the Disclosure
Package or the Prospectus or for additional
information.
(b) During
the Prospectus Delivery Period, the Company will file promptly
all reports and any definitive proxy or information statements
required to be filed by the Company with the Commission
pursuant to the Exchange Act and comply as far as it is able
with all requirements imposed upon it by the Act, as now and
hereafter amended, and by the rules and regulations of the
Commission thereunder, as from time to time in force, so far
as necessary to permit the continuance of sales of or dealings
in the Notes as contemplated by the provisions hereof and in
the Disclosure Package and the Prospectus.
(c) If,
during the Prospectus Delivery Period, any event or
development shall occur or condition exist as a result of
which the Disclosure Package or the Prospectus as then amended
or supplemented would include any untrue statement of a
material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made or then prevailing,
as the case may be, not misleading, or if it shall be
necessary to amend or supplement the Disclosure Package or the
Prospectus, or to file under the Exchange Act any document
incorporated by reference in the Disclosure Package or the
Prospectus, in order to make the statements therein, in the
light of the circumstances under which they were made or then
prevailing, as the case may be, not misleading, or if in the
opinion of the Representatives it is otherwise necessary or
advisable in connection with the distribution of the Notes by
the Agents to amend or supplement the Registration Statement,
the Disclosure Package or the Prospectus, or to file under the
Exchange Act any document incorporated by reference in the
Disclosure Package or the Prospectus, or to file a new
registration statement containing the Prospectus, in order to
comply with law, including in connection with the delivery of
the Prospectus, the Company agrees to (i) notify the
Representatives of any such event or condition and (ii)
promptly prepare (subject to Sections 3(a) and 3(e) hereof),
file with the Commission (and use its best efforts to have any
amendment to the Registration Statement or any new
registration statement declared effective) and furnish at its
own expense to the Agents and to dealers, amendments or
supplements to the Registration Statement, the Disclosure
Package or the Prospectus, or any new registration statement,
necessary in order to make the statements in the Disclosure
Package or the Prospectus as so amended or supplemented, in
the light of the circumstances then prevailing or under which
they were made, as the case may be, not misleading or so that
the Registration Statement, the Disclosure Package or the
Prospectus, as amended or supplemented, will comply with
law. The Company will notify you of the time when
any post-effective amendment to the Registration Statement has
become effective or any supplement to the Disclosure Package
or the Prospectus has been filed.
(d)
The Company will prepare a final term
sheet containing only a description of the Notes, in a form
approved by the Representatives and contained in Schedule D
hereto, and will file such term sheet pursuant to Rule 433(d) under
the Act within the time required by such rule (such term sheet, the
“Final Term Sheet”).
(e) The
Company represents that it has not made, and agrees that,
unless it obtains the prior written consent of the
Representatives, it will not make, any offer relating to the
Notes that would constitute an Issuer Free Writing Prospectus
or that would otherwise constitute a “free writing
prospectus” (as defined in Rule 405 of the Act) required
to be filed by the Company with the Commission or retained by
the Company under Rule 433 of the Act; provided that the prior
written consent of the Representatives shall be deemed to have
been given in respect to the Free Writing Prospectuses
included in Schedule C hereto. Any such free
writing prospectus consented to by the Representatives and the
Company is hereinafter referred to as a “Permitted Free
Writing Prospectus”. The Company agrees that
(i) it has treated and will treat, as the case may be, each
Permitted Free Writing Prospectus as an Issuer Free Writing
Prospectus, and (ii) has complied and will comply, as the case
may be, with the requirements of Rules 164 and 433 of the Act
applicable to any Permitted Free Writing Prospectus, including
in respect of timely filing with the Commission, legending and
record keeping.
(f) The
Company will advise you, promptly after it shall receive
notice or obtain knowledge thereof, of the issuance by the
Commission of any stop order suspending the effectiveness of
the Registration Statement or of any proceeding for that
purpose having been instituted or threatened by the
Commission; and it will promptly use its best efforts to
prevent the issuance of any stop order or to obtain its
withdrawal if such a stop order should be issued.
(g) If
the Prospectus Delivery Period is ongoing immediately prior to
the third anniversary (the “Renewal Deadline”) of
the initial effective date of the Registration Statement, the
Company will prior to the Renewal Deadline file, if it has not
already done so and is eligible to do so, a new automatic
shelf registration statement relating to the Notes, in a form
satisfactory to the Agents. If the Company is no
longer eligible to file an automatic shelf registration
statement, the Company will prior to the Renewal Deadline, if
it has not already done so, file a new shelf registration
statement relating to the Notes, in a form satisfactory to the
Agents, and will use its best efforts to cause such
registration statement to be declared effective within 60 days
after the Renewal Deadline. The Company will take
all other action necessary or appropriate to permit the public
offering and sale of the Notes to continue as contemplated in
the expired registration statement relating to the
Notes. References herein to the Registration
Statement shall include such new automatic shelf registration
statement or such new shelf registration statement, as the
case may be.
(h) If
at any time during the Prospectus Delivery Period the Company
receives from the Commission a notice pursuant to Rule
401(g)(2) or otherwise ceases to be eligible to use the
automatic shelf registration statement form, the Company will
(i) promptly notify the Agents, (ii) promptly file a new
registration statement or post-effective amendment on the
proper form relating to the Notes, in a form satisfactory to
the Agents, (iii) use its best efforts to cause such
registration statement or post-effective amendment to be
declared effective and (iv) promptly notify the Agents of such
effectiveness. The Company will take all other
action necessary or appropriate to permit the public offering
and sale of the Notes to continue as contemplated in the
registration statement that was the subject of the Rule
401(g)(2) notice or for which the Company has otherwise become
ineligible. References herein to the Registration
Statement shall include such new registration statement or
post-effective amendment, as the case may be.
(i) The
Company agrees to pay the required Commission filing fees
relating to the Notes within the time required by Rule
456(b)(1) of the Act without regard to the proviso in clause
(b)(1)(i) therein and otherwise in accordance with Rules
456(b) and 457(r) of the Act.
(j) The
Company will use its best efforts, at the request of and in
cooperation with the Representatives, to qualify the Notes 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 Notes,
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 Notes’ eligibility for investment
under the laws of such jurisdictions as you reasonably
request.
(k) The
Company has furnished or will furnish to the Agents, as soon
as available, copies of the Registration Statement (three of
which will be signed and will include all exhibits except
those incorporated by reference), the Prospectus (including
all documents incorporated by reference therein but excluding
exhibits to such documents), the Supplemented Base Prospectus,
any Issuer Free Writing Prospectuses and all amendments and
supplements to such documents, including any prospectus
prepared to permit compliance with Section 10(a)(3) of the
Act, all in such quantities as you may from time to time
reasonably request.
(l) The
Company will make generally available to its security holders
as soon as practicable, but in any event not later than 15
months after the end of the Company’s current fiscal
quarter, an earnings statement (which need not be audited)
covering a 12-month period beginning after the effective date
of the Registration Statement which shall satisfy the
provisions of Section 11(a) of the Act.
(m) So
long as any of the Notes are outstanding, the Company agrees
to furnish to you, and, upon request, to each of the other
Agents, (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.
(n) 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 7 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, the
Supplemented Base Prospectus, any Issuer Free Writing
Prospectus and all amendments and supplements thereto, any
fees charged by any investment rating agencies for rating the
Notes, all fees and disbursements incurred by the Company and
by the Agents in connection with the qualification of the
Notes under the laws of various jurisdictions as provided in
Section 3(j) hereof and the determination of their eligibility
for investment under the laws of various jurisdictions
(including the cost of furnishing to the Agents memoranda
relating thereto and the reasonable fees and disbursements of
counsel for the Agents in connection therewith), the cost of
furnishing to the Agents copies of the Registration Statement,
the Prospectus, the Supplemented Base Prospectus, any Issuer
Free Writing Prospectus and each amendment and supplement
thereto, in such numbers as you may reasonably request, the
costs and charges of the Trustee and of any depository in
connection with a book-entry system of payments and transfers,
and the cost of preparing the Notes. If the sale of
the Notes 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 Agents’ obligation
hereunder required to be fulfilled by the Company is not
fulfilled, the Company will reimburse the several Agents for
all reasonable out-of-pocket disbursements (including fees and
disbursements of counsel) incurred by the Agents in connection
with their investigation, preparing to market and marketing
the Notes or in contemplation of performing their obligations
hereunder. The Company shall not in any event be
liable to any of the Agents for loss of anticipated profits
from the transactions covered by this Agreement.
(o) The
Company will apply the net proceeds from the sale of the Notes
to be sold by it hereunder for the purposes set forth under
“Use of Proceeds” in each of the Disclosure
Package and the Prospectus.
(p) The
Company will not for a period of 30 days after the
commencement of the public offering of the Notes, without the
prior written consent of the Representatives, offer, sell,
contract to sell, otherwise dispose of or announce the
proposed issuance of any debt securities, including Notes,
with terms substantially similar to the Notes being purchased
pursuant to this Agreement.
3A.
Agreements of
the Agents . Each Agent, severally and not
jointly, represents that it has not made, and covenants and
agrees that, unless it obtains the prior written consent of
the Company, it will not make, any offer relating to the Notes
that would constitute an Issuer Free Writing Prospectus or
that would otherwise constitute a “free writing
prospectus” (as defined in Rule 405 of the Act) required
to be filed by the Company with the Commission or retained by
the Company under Rule 433 of the Act; provided that the prior
written consent of the Company shall be deemed to have been
given in respect of the Free Writing Prospectuses included in
Schedule C hereto. Notwithstanding anything to the
contrary herein, no Agent must obtain the prior written
consent of the Company with respect to the use of a free
writing prospectus relating to the Notes that (a) is not
an “issuer free writing prospectus” as defined in
Rule 433 of the Act, (b) is not a “free writing
p
