Exhibit 1
SCANA Corporation
$800,000,000 Medium-Term Notes
Due Nine Months or More
From Date of Issue
UBS Warburg LLC
677 Washington Boulevard
Stamford, Connecticut 06901
Credit Suisse First Boston Corporation
Eleven Madison Avenue
New York, New York 10010
Banc of America Securities LLC
Bank of America Corporate Center
100 North Tryon Street; Mail Code NC1-007-07-01
Charlotte, North Carolina 28255
First Union Securities, Inc.
One First Union Center
301 South College Street
TW8, NC0604
Charlotte, North Carolina 28288
Selling Agency Agreement
January 23, 2002
New York, New York
Dear Ladies and Gentlemen:
SCANA Corporation, a South Carolina corporation (the "Company"),
confirms its agreement with each of you as evidenced by this Selling Agency
Agreement dated January 23, 2002 (the "Agreement"), with respect to the issue
and sale by the Company of up to $800,000,000 aggregate principal amount of its
Medium-Term Notes, Due Nine Months or More From Date of Issue (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, as trustee (the
"Trustee"). Unless otherwise set forth in a supplement to the Prospectus
referred to below, 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, if
appropriate, other terms set forth in such supplement to the Prospectus. The
Notes will be issued, and the terms thereof established, in accordance with the
Indenture and, in the case of Notes sold pursuant to Section 2(a), the
Medium-Term Note Administrative Procedures attached hereto as Exhibit A (the
"Procedures") (unless a Terms Agreement (as defined in Section 2(b)) modifies or
supersedes such Procedures with respect to the Notes issued pursuant to such
Terms Agreement). The Procedures may be amended only by written agreement of the
Company and you after notice to, and with the approval of, the Trustee. For the
purposes of this Agreement, the term "Agent" shall refer to any of you, together
with any others who are
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subsequently appointed as agents pursuant to Section 2(c) hereof, acting solely
in the capacity as agent for the Company pursuant to Section 2(a) and not as
principal (collectively, including any other who is subsequently appointed as an
agent pursuant to Section 2(c) hereof, the "Agents"), the term the "Purchaser"
shall refer to one of you, or any other who is subsequently appointed as
principal pursuant to Section 2(c) hereof, acting solely as principal pursuant
to Section 2(b) and not as agent, and the term "you" shall refer to you
collectively whether at any time any of you are acting in both such capacities
or in either such capacity.
1. Representations and Warranties. The Company represents and warrants
to, and agrees with, you as set forth below in this Section 1. Certain terms
used in this Section 1 are defined in paragraph (i) hereof.
(a) The Company meets the requirements for use of Form S-3
under the Securities Act of 1933, as amended (the "Act") and has filed with the
Securities and Exchange Commission (the "Commission") registration statements on
such Form (File Numbers: 333-90073, 333-49960 and 333-68266), which registration
statements have become effective, for the registration under the Act of
$800,000,000 aggregate principal amount of debt securities (the "Securities"),
including the Notes. Such registration statements, as amended at the date of
this Agreement, meet the requirements set forth in Rule 415(a)(1)(ix) or (x)
under the Act and comply in all other material respects with said Rule. In
connection with the sale of Notes the Company proposes to file with the
Commission pursuant to the applicable paragraph of Rule 424(b) under the Act
supplements to the Prospectus (hereinafter defined) specifying the interest
rates, maturity dates and, if appropriate, other terms of the Notes sold
pursuant hereto or the offering thereof.
(b) As of the Execution Time (as defined by Section 1(i)), on
the Effective Date (as defined by Section 1(i)), when any supplement to the
Prospectus is filed with the Commission, as of the date of any Terms Agreement
and at the date of delivery by the Company of any Notes sold hereunder (a
"Closing Date"), (i) the Registration Statement (as defined by Section 1(i)), as
amended as of any such time, and the Prospectus, as supplemented as of any such
time, and the Indenture will comply in all material respects with the applicable
requirements of the Act, the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), and the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and the respective rules thereunder; (ii) the Registration
Statement, as amended as of any such time, did not or will not contain any
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 not
misleading; and (iii) the Prospectus, as supplemented as of any such time, will
not contain any untrue statement of a material fact or omit to state a material
fact 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 Company makes no representations or warranties as to (i) that part of
the Registration Statement which shall constitute the Statement of Eligibility
(Form T-1) under the Trust Indenture Act of the Trustee or (ii) the information
contained in or omitted from the Registration Statement or the Prospectus (or
any supplement thereto) in reliance upon and in conformity with information
furnished in writing to the Company by any of you specifically for use in
connection with the preparation of the Registration Statement or the Prospectus
(or any supplement thereto).
(c) As of the Execution Time and as of the time any Notes are
issued and sold hereunder, the Indenture has or will have been duly authorized,
executed and delivered, has or will have been duly qualified under the Trust
Indenture Act, and did or will constitute a legal, valid and binding instrument
enforceable against the Company in accordance with its terms (subject, as to
enforcement of remedies, to applicable bankruptcy,
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reorganization, insolvency, moratorium or other laws affecting creditors' rights
generally from time to time in effect), and such Notes will have been duly
authorized, executed, authenticated and, when paid for by the purchasers
thereof, will constitute legal, valid and binding obligations of the Company
entitled to the benefits of the Indenture (subject, as to enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or
other laws affecting creditors' rights generally from time to time in effect)
and the Indenture and such Notes will conform to the description thereof
contained in the Prospectus and the applicable supplement thereto.
(d) Each of the Company, South Carolina Electric & Gas
Company, South Carolina Pipeline Corporation, South Carolina Generating Company,
Inc. and Public Service Company of North Carolina, Incorporated, 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 its properties and conduct its business as described in the
Prospectus, and is duly qualified to do business as a foreign corporation and is
in good standing under the laws of each jurisdiction which requires such
qualification wherein it owns or leases material properties or conducts material
business.
(e) 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 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.
(f) The Company's authorized equity capitalization is as set
forth in the Registration Statement; and the Notes conform to the description
thereof contained in the Prospectus (subject to the insertion in the Notes of
the maturity dates, the interest rates and other similar terms thereof which
will be described in supplements to the Prospectus as contemplated by the third
sentence of Section l(a) of this Agreement).
(g) The Company is a public utility holding company within the
meaning of the Public Utility Holding Company Act of 1935, as amended (the "PUHC
Act") and is registered as such under such Act; and the Company is not subject
to registration under the Investment Company Act of 1940, as amended (the
"Investment Company Act").
(h) Except for such approvals as may be required under the
PUHC Act, which have been or will be obtained prior to the applicable issuance
of the Notes, all approvals required to be obtained from governmental and
regulatory authorities in connection with the issuance and sale of the Notes
(except for those required under state securities laws or blue sky laws of any
jurisdiction) have been obtained and are in full force and effect.
(i) The terms which follow, when used in this Agreement, shall
have the meanings indicated. The term "Effective Date" shall mean the date that
Registration Statement No. 333-68266 and any subsequent post-effective amendment
or amendments to the Registration Statement became or become effective.
"Execution Time" shall mean the date and time that this Agreement is executed
and delivered by the parties hereto. "Prospectus" shall mean the form of basic
prospectus relating to the Securities contained in the Registration Statement at
the Effective Date. "Registration Statement" shall mean the registration
statement referred to in paragraph (a) above, including incorporated documents,
exhibits and financial statements, as amended at the
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Execution Time. "Rule 415" and "Rule 424" refer to such rules under the Act. Any
reference herein to the Registration Statement or the Prospectus shall be deemed
to refer to and include the documents incorporated by reference therein pursuant
to Item 12 of Form S-3 which were filed under the Exchange Act on or before the
Effective Date of the Registration Statement or the issue date of the
Prospectus, as the case may be; and any reference herein to the terms "amend,"
"amendment" or "supplement" with respect to the Registration Statement or the
Prospectus shall be deemed to refer to and include the filing of any document
under the Exchange Act after the Effective Date of the Registration Statement or
the issue date of the Prospectus, as the case may be, deemed to be incorporated
therein by reference.
(j) As of the Execution Time, this Agreement has been duly
authorized, executed and delivered by the Company.
(k) As of the Execution Time, since the date of the most
recent financial statements included in the Prospectus (exclusive of any
supplement thereto dated after the Execution Time), there has been no material
adverse change in the condition (financial or other), earnings, business or
properties of the Company and its subsidiaries, whether or not arising from
transactions in the ordinary course of business, except as set forth in or
contemplated in the Prospectus (exclusive of any supplement thereto dated after
the Execution Time).
(l) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Exchange Act
and the rules and regulations of the Commission thereunder, and none of such
documents contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading; and any further documents so filed and incorporated by
reference, when they become effective or are filed with the Commission, as the
case may be, will conform in all material respects to the requirements of the
Exchange Act and the rules and regulations of the Commission thereunder, and
will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading.
(m) 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 the Company reasonably expects will result in
any material adverse change in the condition (financial or other), business, net
worth or results of operations of the Company or the Company reasonably expects
will 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.
(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
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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
or blue sky laws of any jurisdiction and except for such approvals as are
required to be obtained under the PUHC Act which have been or will be obtained
prior to the applicable issuance of the Notes, and is or will be in full force
and effect, and the Company has full power and authority to authorize, issue and
sell the Notes on the terms and conditions herein set forth.
(o) Any certificate signed by an officer of the Company and
delivered to one or more Agents or to counsel for the Agents in connection with
an offering of Notes to one or more Agents as principal or through an Agent as
agent shall be deemed a representation and warranty by the Company to such Agent
or Agents as to the matters covered thereby on the date of such certificate.
2. Appointment of Agents; Solicitation by the Agents of Offers to
Purchase; Sales of Notes to a Purchaser.
(a) Subject to the terms and conditions set forth herein, the
Company hereby authorizes each of the Agents to act as its agent to solicit
offers for the purchase of all or part of the Notes from the Company.
On the basis of the representations and warranties, and subject to the
terms and conditions set forth herein, each of the Agents agrees, as agent of
the Company, to use its reasonable efforts to solicit offers to purchase the
Notes from the Company upon the terms and conditions set forth in the Prospectus
(and any supplement thereto) and in the Procedures. Each Agent shall make
reasonable efforts to assist the Company in obtaining performance by each
purchaser whose offer to purchase Notes has been solicited by such Agent and
accepted by the Company, but such Agent shall not, except as otherwise provided
in this Agreement, have any liability to the Company in the event any such
purchase is not consummated for any reason. Except as provided in Section 2(b),
under no circumstances will any Agent be obligated to purchase any Notes for its
own account. It is understood and agreed, however, that any Agent may purchase
Notes as principal pursuant to Section 2(b).
The Company reserves the right, in its sole discretion, to instruct the
Agents to suspend at any time, for any period of time or permanently, the
solicitation of offers to purchase the Notes. Upon receipt of instructions from
the Company, the Agents will forthwith suspend solicitation of offers to
purchase Notes from the Company until such time as the Company has advised them
that such solicitation may be resumed.
The Company agrees to pay each Agent a commission, on the Closing Date
with respect to each sale of Notes by the Company as a result of a solicitation
made by such Agent, in an amount equal to that percentage specified in Schedule
I hereto of the aggregate principal amount of the Notes sold by the Company.
Such commission shall be payable as specified in the Procedures.
Subject to the provisions of this Section and the Procedures, offers
for the purchase of Notes may be solicited by an Agent, as agent for the
Company, at such time and in such amounts as such Agent deems advisable. The
Company may from time to time offer Notes for sale otherwise than through an
Agent.
If the Company shall default in its obligations to deliver Notes to a
purchaser whose offer it has accepted, the Company shall indemnify and hold each
of you harmless against any loss, claim or damage arising from or as a result of
such default by the Company.
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(b) Subject to the terms and conditions stated herein,
whenever the Company and any Agent determine that the Company shall sell Notes
directly to such Agent as a Purchaser, each such sale of Notes shall be made in
accordance with the terms of this Agreement, unless otherwise agreed by the
Company and such Agent, and any supplemental agreement relating thereto (which
may be an oral agreement confirmed in writing or written agreement) between the
Company and the Purchaser. Each such supplemental agreement (which shall be
substantially in the form of Exhibit B) is herein referred to as a "Terms
Agreement." Each Terms Agreement shall describe (whether orally and confirmed in
writing or in writing) the Notes to be purchased by the Purchaser pursuant
thereto, and shall specify the principal amount of such Notes, the maturity date
of such Notes, the rate at which interest will be paid on the Notes and the
record dates for each payment of interest, the Closing Date for the purchase of
such Notes, the place of delivery of the Notes and payment therefor, the method
of payment and any requirements for the delivery of opinions of counsel,
certificates from the Company or its officers, or a letter from the Company's
independent public accountants as described in Section 6(b). Such Terms
Agreement shall also specify the period of time referred to in Section 4(m). The
Purchaser's commitment to purchase Notes pursuant to any Terms Agreement shall
be deemed to have been made on the basis of the representations and warranties
of the Company herein contained and shall be subject to the terms and conditions
herein set forth.
Delivery of the certificates for Notes sold to the Purchaser pursuant
to any Terms Agreement shall be made as agreed to between the Company and the
Purchaser as set forth in the respective Terms Agreement, not later than the
Closing Date set forth in such Terms Agreement, against payment of funds to the
Company in the net amount due to the Company for such Notes by the method and in
the form set forth in the Procedures unless otherwise agreed to between the
Company and the Purchaser in such Terms Agreement.
Unless otherwise agreed to between the Company and the Purchaser in a
Terms Agreement, any Note sold to a Purchaser (i) shall be purchased by such
Purchaser at a price equal to 100% of the principal amount thereof less a
percentage equal to the commission applicable to an agency sale of a Note of
identical maturity and (ii) may be resold by such Purchaser at varying prices
from time to time. In connection with any resale of Notes purchased, a Purchaser
may use a selling or dealer group and may reallow any portion of the discount or
commission payable pursuant hereto to dealers or purchasers.
(c) The Company may appoint additional agents in connection
with the offering and sale of the Notes from time to time or in connection with
a single offering and sale of the Notes, whether as agent or principal, provided
that, in any such case, the Company gives the Agents at least five (5) days'
prior notice of such appointment and any such additional agent enters into an
agreement with the Company making such additional agent an Agent or Purchaser,
as the case may be, under this Agreement with respect to such offering and sale
of the Notes from time to time or solely for the purpose of such single offering
and sale of the Notes, as the case may be.
3. Offering and Sale of Notes.
Each Agent and the Company agree to perform the respective duties and
obligations specifically provided to be performed by them in the Procedures.
4. Agreements. The Company agrees with you that:
(a) Prior to the termination of the offering of the Notes, the
Company will not file any amendment to the Registration Statement or supplement
to the Prospectus without the consent of the Agents (except (i) periodic or
current reports filed under the Exchange Act or (ii) a supplement
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relating to any offering of Notes providing solely for the specification of or a
change in the maturity dates, interest rates, issuance prices or other similar
terms of any Notes) without first affording you the opportunity to review the
same and to which you shall timely and reasonably object. Subject to the
foregoing sentence, the Company will cause each supplement to the Prospectus to
be filed with the Commission pursuant to the applicable paragraph of Rule 424(b)
within the time period prescribed and will provide evidence satisfactory to you
of such filing. The Company will promptly advise each of you (i) when the
Prospectus, and any supplement thereto, shall have been filed with the
Commission pursuant to Rule 424(b), (ii) when, prior to the termination of the
offering of the Notes, any amendment of the Registration Statement shall have
been filed or become effective, (iii) of any request by the Commission for any
amendment of the Registration Statement or supplement to the Prospectus or for
any additional information, (iv) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement, or any part
thereof, or the institution or threatening of any proceeding for that purpose,
or if the Company has knowledge that any such action is contemplated by the
Commission, and (v) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Notes for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose. The Company will use its best efforts to prevent the issuance of any
such stop order and, if issued, to obtain as soon as possible the withdrawal
thereof.
(b) If, at any time when a prospectus relating to the Notes is
required to be delivered under the Act, any event occurs as a result of which
the Prospectus as then supplemented would include any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it shall be necessary to amend the Registration
Statement or to supplement the Prospectus to comply with the Act or the Exchange
Act or the respective rules thereunder, the Company promptly will (i) notify
each of you to suspend solicitation of offers to purchase Notes (and, if so
notified by the Company, each of you shall forthwith suspend such solicitation
and cease using the Prospectus as then supplemented), (ii) prepare and file with
the Commission, an amendment or supplement which will correct such statement or
omission or effect such compliance and (iii) supply any supplemented Prospectus
to each of you in such quantities as you may reasonably request. If such
amendment or supplement, and any documents, certificates and opinions furnished
to any of you pursuant to paragraph (g) of this Section 4 in connection with the
preparation or filing of such amendment or supplement are satisfactory in all
respects to you, you will, upon the filing of such amendment or supplement with
the Commission and upon the effectiveness of an amendment to the Registration
Statement, if such an amendment is required, resume your obligation to solicit
offers to purchase Notes hereunder. Notwithstanding the foregoing, if, at the
time of any notification to suspend solicitations, any Agent shall own any of
the Notes with the intention of reselling them, or the Company has accepted an
offer to purchase Notes but the related settlement has not occurred, the
Company, subject to the provisions of subsection (a) of this Section, will
promptly prepare and file with the Commission an amendment or supplement which
will correct such statement or omission or an amendment which will effect such
compliance.
(c) The Company, during the period when a prospectus relating
to the Notes is required to be delivered under the Act, will file promptly all
documents required to be filed with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act and will furnish to each of you copies of
such documents. In addition, on or prior to the date on which the Company makes
any announcement to the general public concerning earnings or concerning any
other event which is required to be described, or which the Company
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proposes to describe, in a document filed pursuant to the Exchange Act, the
Company will furnish to each of you the information contained or to be contained
in such announcement. The Company also will furnish to each of you copies of all
other press releases or announcements to the general public. The Company will
immediately notify each of you of any downgrading in the rating of the Notes or
any other debt securities of the Company, or any proposal to downgrade the
rating of the Notes or any other debt securities of the Company, by any
"nationally recognized statistical rating organization" (as defined for purposes
of Rule 436(g) under the Act), as soon as the Company learns of any such
downgrading or proposal to downgrade.
(d) As soon as practicable, the Company will make generally
available to its security holders and to each of you an earnings statement or
statements of the Company and its subsidiaries which will satisfy the provisions
of Section 11(a) of the Act and Rule 158 under the Act.
(e) The Company will furnish to each of you and your counsel,
without charge, copies of the Registration Statement (including all amendments
and exhibits thereto) and, so long as delivery of a prospectus may be required
by the Act, as many copies of the Prospectus and any supplement thereto as you
may reasonably request.
(f) The Company will arrange for the qualification of the
Notes for sale under the laws of such jurisdictions as any of you may designate,
will maintain such qualifications in effect so long as required for the
distribution of the Notes, and will arrange for the determination of the
legality of the Notes for purchase by institutional investors.
(g) The Company shall furnish to each of you such information,
documents, certificates of officers of the Company and opinions of counsel for
the Company relating to the business, operations and affairs of the Company, the
Registration Statement, the Prospectus, and any amendments thereof or
supplements thereto, the Indenture, the Notes, this Agreement, the Procedures
and the performance by the Company and you of its and your respective
obligations hereunder and thereunder as any of you may from time to time and at
any time prior to the termination of this Agreement reasonably request.
(h) The Company shall, whether or not any sale of the Notes is
consummated, (i) pay all expenses incident to the performance of its obligations
under this Agreement, including the fees and disbursements of its accountants
and counsel, the cost of printing or other production and delivery of the
Registration Statement, the Prospectus, all amendments thereof and supplements
thereto, the Indenture, this Agreement and all other documents relating to the
offering, the cost of preparing, printing, packaging and delivering the Notes,
the fees and disbursements, including fees of counsel, incurred in compliance
with Section 4(f), the fees and disbursements of the Trustee and the fees of any
agency that rates the Notes, (ii) reimburse each of you on a monthly basis for
all out-of-pocket expenses (including without limitation advertising expenses),
if any, incurred by you in connection with this Agreement and the transactions
contemplated hereunder and (iii) pay the reasonable fees and expenses of your
counsel incurred in connection with this Agreement and the transactions
contemplated hereunder.
(i) Each acceptance by the Company of an offer to purchase
Notes will be deemed to be an affirmation that its representations and
warranties contained in this Agreement are true and correct at the time of such
acceptance, as though made at and as of such time, and a covenant that such
representations and warranties will be true and correct at the time of delivery
to the purchaser of the Notes relating to such acceptance, as though made at and
as of such time (it being understood that for purposes of the foregoing
affirmation and covenant such representations and warranties shall
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relate to the Registration Statement and Prospectus as amended or supplemented
at each such time). Each such acceptance by the Company of an offer for the
purchase of Notes shall be deemed to constitute an additional representation,
warranty and agreement by the Company that, as of the settlement date for the
sale of such Notes, after giving effect to the issuance of such Notes and of any
other Notes to be issued on or prior to such settlement date, the aggregate
amount of Notes which have been issued and sold by the Company will not exceed
the amount of Notes registered pursuant to the Registration Statement.
(j) Each time that the Registration Statement or the
Prospectus is amended or supplemented (other than by an amendment or supplement
relating to any offering of Securities other than the Notes, providing solely
for the specification of or a change in the maturity dates, the interest rates,
the issuance prices or other similar terms of any Notes sold pursuant hereto or
setting forth financial statements of benefit plans of the Company), the Company
will deliver or cause to be delivered promptly to each of you a certificate of
the Company, signed by any two of the Chairman of the Board, the President, the
principal financial officer, the principal accounting officer or a senior vice
president of the Company, dated the date of the effectiveness of such amendment
or the date of the filing of such supplement, in form reasonably satisfactory to
you, of the same tenor as the certificate referred to in Section 5(e) but
modified to relate to the last day of the fiscal quarter for which financial
statements of the Company were last filed with the Commission and to the
Registration Statement and the Prospectus existing at the time of the
effectiveness of such amendment or the filing of such supplement.
(k) Each time that the Registration Statement or the
Prospectus is amended or supplemented (other than by an amendment or supplement
(i) relating to any offering of Securities other than the Notes, (ii) providing
solely for the specification of or a change in the maturity dates, the interest
rates, the issuance prices or other similar terms of any Notes sold pursuant
hereto, (iii) setting forth or incorporating by reference financial statements
or other information as of and for a fiscal quarter, unless, in the reasonable
judgment of any of you, such financial statements or other information are of
such a nature that an opinion of counsel should be furnished, or (iv) setting
forth financial statements of benefit plans of the Company), the Company shall
furnish or cause to be furnished promptly to each of you written opinions of
counsel to the Company satisfactory to each of you, dated the date of the
effectiveness of such amendment or the date of the filing of such supplement, in
form satisfactory to each of you, of the same tenor as the opinions referred to
in Sections 5(b) and 5(c) but modified to relate to the Registration Statement
and the Prospectus existing at the time of the effectiveness of such amendment
or the filing of such supplement or, in lieu of such opinion, counsel last
furnishing such an opinion to you may furnish each of you with a letter to the
effect that you may rely on such last opinion to the same extent as though it
were dated the date of such letter authorizing reliance (except that statements
in such last opinion will be deemed to relate to the Registration Statement and
the Prospectus existing at the time of the effectiveness of such amendment or
the filing of such supplement).
(l) Each time that the Registration Statement or the
Prospectus is amended or supplemented to set forth amended or supplemental
financial information (other than financial statements of benefit plans of the
Company), the Company shall cause its independent public accountants promptly to
furnish to each of you a letter, dated the date of the effectiveness of such
amendment or the date of the filing of such supplement, in form satisfactory to
each of you, of the same tenor as the letter referred to in Section 5(f) with
such changes as may be necessary to reflect the amended and supplemental
financial
13
information included or incorporated by reference in the Registration Statement
and the Prospectus, as amended or supplemented to the date of such letter;
provided, however, that, if the Registration Statement or the Prospectus is
amended or supplemented solely to include or incorporate by reference financial
information as of and for a fiscal quarter, the Company's independent public
accountants may limit the scope of such letter, which shall be satisfactory in
form to each of you, to the unaudited financial statements, the related
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" and any other information of an accounting, financial or statistical
nature included in such amendment or supplement, unless, in the reasonable
judgment of any of you, such letter should cover other information or changes in
specified financial statement line items.
(m) During the period, if any, specified (whether orally or in
writing) in any Terms Agreement, the Company shall not, without the prior
consent of the Purchaser thereunder, offer, sell, contract to sell or announce
the proposed issuance of any debt securities, including Notes, with terms
substantially similar to the Notes being purchased pursuant to such Terms
Agreement, other than borrowings under its revolving credit agreements and lines
of credit and issuances of its commercial paper.
5. Conditions to the Obligations of the Agents.
The obligation of each Agent to solicit offers to purchase the Notes
shall be subject to the accuracy of the representations and warranties on the
part of the Company contained herein as of the Execution Time, on the Effective
Date, when any supplement to the Prospectus is filed with the Commission, as of
each Closing Date and on the date of each solicitation, to the accuracy of the
statements of the Company made in any certificates pursuant to the provisions
hereof, to the performance by the Company of its obligations hereunder and to
the following additional conditions:
(a) If filing of the Prospectus, or any supplement thereto, is
required pursuant to Rule 424(b), the Prospectus, and any such supplement, shall
have been filed in the manner and within the time period required by Rule
424(b); and no stop order suspending the effectiveness of the Registration
Statement, or any part thereof, shall have been issued and no proceedings for
that purpose shall have been instituted or threatened, or, to the knowledge of
the Company or any Agent, be contemplated by the Commission.
(b) The Company shall have furnished to each Agent the opinion
of its General Counsel or the Deputy General Counsel for the Company, dated the
Execution Time, to the effect that:
(i) each of the Company and its 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 its properties and conduct its business as
described in the Prospectus, and is duly qualified to do
business as a foreign corporation and is in good standing
under the laws of each jurisdiction which requires such
qualification wherein it owns or leases material properties or
conducts material business;
(ii) 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 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 such counsel, after due
14
inquiry, any other security interests, claims, liens or
encumbrances;
(iii) the Company's authorized equity capitalization
is as set forth in the Registration Statement; and the Notes
conform to the description thereof contained in the Prospectus
(subject to the insertion in the Notes of the maturity dates,
the interest rates and other similar terms thereof which will
be described in supplements to the Prospectus as contemplated
by the third sentence of Section 1(a) of this Agreement);
(iv) the Indenture has been duly authorized, executed
and delivered, has been duly qualified under the Trust
Indenture Act, and constitutes a legal, valid and binding
instrument enforceable against the Company in accordance with
its terms (subject, as to enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium
or other laws affecting creditors' rights generally from time
to time in effect); and the Notes have been duly authorized
and, when executed and authenticated in accordance with the
provisions of the Indenture and the Procedures and delivered
by the Trustee and paid for by the purchasers thereof, will
constitute legal, valid and binding obligations of the Company
entitled to the benefits of the Indenture (subject, as to
enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting
creditors' rights generally from time to time in effect);
(v) the Company is a public utility holding company
within the meaning of the PUHC Act and is registered as such
under such Act; and the Company is not subject to registration
under the Investment Company Act;
(vi) to the best knowledge of such counsel, there is
no pending or threatened action, suit or proceeding before any
court or governmental agency, authority or body or any
arbitrator involving the Company or any of its Subsidiaries,
of a character required to be disclosed in the Registration
Statement which is not adequately disclosed in the Prospectus,
and there is no franchise, contract or other document of a
character required to be described in the Registration
Statement or Prospectus, or to be filed as an exhibit, which
is not described or filed as required; and the statements
included or incorporated in the Prospectus describing any
legal proceedings or material contracts or agreements relating
to the Company fairly summarize such matters;
(vii) the Registration Statement has become effective
under the Act; any required filing of the Prospectus, and any
supplements thereto, pursuant to Rule 424(b) has been made in
the manner and within the time period required by Rule 424(b);
to the best knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has
been issued, no proceedings for that purpose have been
instituted or threatened, and the Registration Statement as of
the Effective Date complied and the Prospectus as of the
Execution Time complies (except that no opinion need be
expressed as to the financial statements and other financial
and statistical information contained in the Registration
Statement or the Prospectus or the Trustee's Statement of
Eligibility on Form T-1) as to form in all material respects
with the applicable requirements of the Act and the Exchange
Act and the respective rules thereunder; and such counsel has
no reason to believe that the Registration Statement at the
15
Effective Date contained any untrue statement of a material
fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading or that the Prospectus as of the Execution Time
includes any untrue statement of a material fact or omits to
state a material fact necessary to make the statements
therein, in the light of the circumstances under which they
were made, not misleading (except that no opinion need be
expressed as to the financial statements and other financial
and statistical information contained or incorporated by
reference therein 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 captions "Book
Entry System" in the Prospectus or as to the Trustee's
Statement of Eligibility on Form T-1);
(viii) this Agreement has been duly authorized,
executed and delivered by the Company;
(ix) except for such approvals as may be required
under the PUHC Act, which have been obtained for the period
ending February 11, 2003, no consent, approval, authorization
or order of any court or governmental agency or body is
required for the consummation of the transactions contemplated
herein except such as have been obtained under the Act and
such other approvals (specified in such opinion) as have been
obtained;
(x) neither the execution and delivery of this
Agreement or the Indenture, the issue and sale of the Notes,
nor the consummation of any other of the transactions
contemplated herein nor the fulfillment of the terms hereof
will conflict with, result in a breach or violation of, or
constitute a default under, any law or the charter or bylaws
of the Company or the terms of any indenture or other
agreement or instrument known to such counsel and to which the
Company or any of its subsidiaries is a party or bound, or any
judgment, order, decree or regulation known to such counsel to
be applicable to the Company or any of its subsidiaries of any
court, regulatory body, administrative agency, governmental
body or arbitrator having jurisdiction over the Company or any
of its subsidiaries;
(xi) no holders of securities of the Company have
rights to the registration of such securities under the
Registration Statement;
(xii) the statements contained in the Prospectus
under the captions "Description of Notes" and "Plan of
Distribution" fairly present the matters referred to therein;
(xiii) 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
(xiv) except as otherwise set forth in the
Prospectus, the Company has such 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,
16
ownership, maintenance and operation of the properties now
owned by it and the conduct of the business now carried on by
it as described in the Registration Statement and Prospectus,
and the Company is not in default or violation of any thereof
and is carrying on its business in accordance therewith and,
to the best of his knowledge, with all applicable federal,
state and other laws and regulations, except as would not
materially adversely affect the condition (financial or
other), business, net worth or results of operations of the
Company or the property or assets thereof.
In rendering such opinion, such counsel may rely as to matters of fact, to the
extent deemed proper, on certificates of responsible officers of the Company and
public officials and may assume that the laws of the State of New York are
identical to the laws of the State of South Carolina. References to the
Prospectus in this paragraph (b) include any supplements thereto at the date
such opinion is rendered. No opinion need be expressed as to matters relating to
state securities laws or blue sky laws of any jurisdiction.
(c) The Company shall have furnished to each Agent the opinion
of McNair Law Firm, P.A., counsel for the Company, dated the Execution Time, to
the effect that:
(i) each of the Company and its 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 its properties and conduct its business as
described in the Prospectus;
(ii) the Company's authorized equity capitalization
is as set forth in the Registration Statement; and the Notes
conform to the description thereof contained in the Prospectus
(subject to the insertion in the Notes of the maturity dates,
the interest rates and other similar terms thereof which will
be described in supplements to the Prospectus as contemplated
by the third sentence of Section 1(a) of this Agreement);
(iii) the Indenture has been duly authorized,
executed and delivered, has been duly qualified under the
Trust Indenture Act, and constitutes a legal, valid and
binding instrument enforceable against the Company in
accordance with its terms (subject, as to enforcement of
remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium or other laws affecting creditors'
rights generally from time to time in effect); and the Notes
have been duly authorized and, when executed and authenticated
in accordance with the provisions of the Indenture and the
Procedures and delivered by the Trustee and paid for by the
purchasers thereof, will constitute legal, valid and binding
obligations of the Company entitled to the benefits of the
Indenture;
(iv) the Registration Statement has become effective
under the Act; any required filing of the Prospectus, and any
supplements thereto, pursuant to Rule 424(b) has been made in
the manner and within the time period required by Rule 424(b);
to the best knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has
been issued, no proceedings for that purpose have been
instituted or threatened, and the Registration Statement as of
the Effective Date complied and the Prospectus as of the
Execution Time complies (except that no opinion need be
expressed as to the financial statements and
17
other financial and statistical information contained in the
Registration Statement or the Prospectus or the Trustee's
Statement of Eligibility on Form T-1) as to form in all
material respects with the applicable requirements of the Act
and the Exchange Act and the respective rules thereunder; and
such counsel has no reason to believe that the Registration
Statement at the Effective Date contained any untrue statement
of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus at
the Execution Time includes any untrue statement of a material
fact or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading (except that no opinion
need be expressed as to the financial statements and other
financial and statistical information contained or
incorporated by reference therein 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" in the Prospectus or as to the
Trustee's Statement of Eligibility on Form T-1);
(v) the Company is a public utility holding company
within the meaning of the PUHC Act and is registered as such
under such Act; and the Company is not subject to registration
under the Investment Company Act;
(vi) except for such approvals as may be required
under the PUHC Act, which have been obtained for the period
ending February 11, 2003, all approvals required to be
obtained from governmental and regulatory authorities in
connection with the issuance and sale of the Notes have been
obtained and are in full force and effect;
(vii) this Agreement has been duly authorized,
executed and delivered by the Company; and
(viii) neither the execution and delivery of this
Agreement or the Indenture, the issue and sale of the Notes,
nor the consummation of any other of the transactions herein
contemplated nor the fulfillment of the terms hereof will
conflict with, result in a breach or violation of, or
constitute a default under, any law or the charter or bylaws
of the Company or the terms of any indenture or other
agreement or instrument known to such counsel and to which the
Company or any of its subsidiaries is a party or bound, or any
judgment, order, decree or regulation known to such counsel to
be applicable to the Company or any of its subsidiaries of any
court, regulatory body, administrative agency, governmental
body or arbitrator having jurisdiction over the Company or any
of its subsidiaries.
In rendering such opinion, such counsel may rely as to matters of fact, to the
extent deemed proper, on certificates of responsible officers of the Company and
public officials and may assume that the laws of the State of New York are
identical to the laws of the State of South Carolina. References to the
Prospectus in this paragraph (c) include any supplements thereto at the date
such opinion is rendered. No opinion need be expressed as to matters relating to
state securities laws or blue sky laws of any jurisdiction.
(d) Each Agent shall have received from Thelen Reid & Priest
LLP, New York, New York, counsel for the Agents, such opinion or opinions, dated
the Execution Time, with respect to the issuance and sale of the Notes,
18
the Indenture, the Registration Statement, the Prospectus (together with any
supplement thereto) and other related matters as the Agents may reasonably
require, and the Company shall have furnished to such counsel such documents as
they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to each Agent a
certificate of the Company, signed by any two of the Chairman of the Board, the
President, the principal financial officer, the principal accounting officer or
a senior vice president of the Company, dated the Execution Time, to the effect
that the signers of such certificate have carefully examined the Registration
Statement, the Prospectus, any supplement to the Prospectus and this Agreement
and that:
(i) the representations and warranties of the Company
in this Agreement are true and correct in all material
respects upon and as of the date hereof with the same effect
as if made on the date hereof and the Company has complied
with all the agreements and satisfied all the conditions on
its part to be performed or satisfied as a condition to the
obligation of the Agents to solicit offers to purchase the
Notes;
(ii) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings
for that purpose have been instituted or, to the Company's
knowledge, threatened; and
(iii) since the date of the most recent financial
statements included in the Prospectus (exclusive of any
supplement thereto dated after the Execution Time), there has
been no material adverse change in the condition (financial or
other), earnings, business or properties of the Company and
its subsidiaries, whether or not arising from transactions in
the ordinary course of business, except as set forth in or
contemplated in the Prospectus (exclusive of any supplement
thereto dated after the Execution Time).
(f) At the Execution Time, Deloitte & Touche LLP shall have
furnished to each Agent a letter or letters (which may refer to letters
previously delivered to the Agents), dated as of the Execution Time, in form and
substance satisfactory to the Agents, confirming that they are independent
accountants within the meaning of the Act and the Exchange Act and the
respective applicable published rules and regulations thereunder and stating in
effect that:
(i) in their opinion the audited financial
statements, financial statement schedules and pro forma
financial statements, if any, included or incorporated in the
Registration Statement and the Prospectus and reported on by
them comply in form in all material respects with the
applicable accounting requirements of the Act and the Exchange
Act and the related published rules and regulations;
(ii) on the basis of a reading of the latest
unaudited consolidated financial statements made available by
the Company; carrying out certain specified procedures (but
not an examination in accordance with generally accepted
auditing standards) which would not necessarily reveal matters
of significance with respect to the comments set forth in such
letter; a reading of the minutes of the meetings of the
stockholders, directors and executive committee of the Company
and the Subsidiaries; and inquiries of certain officials of
the Company who have responsibility for
19
financial and accounting matters of the Company and its
subsidiaries as to transactions and events subsequent to the
date of the most recent audited financial statements included
or incorporated in the Prospectus, nothing came to their
attention which caused them to believe that:
(1) any unaudited consolidated financial
statements included or incorporated in the
Registration Statement and the Prospectus do not
comply in form in all material respects with
applicable accounting requirements and with the
published rules and regulations of the Commission
with respect to financial statements included or
incorporated in quarterly reports on Form 10-Q under
the Exchange Act; and said unaudited financial
statements are not in conformity with generally
accepted accounting principles applied on a basis
substantially consistent with that of the audited
financial statements included or incorporated in the
Registration Statement and the Prospectus;
(2) with respect to the period subsequent to
the date of the most recent consolidated financial
statements (other than any capsule information),
audited or unaudited, in or incorporated by reference
in the Registration Statement and the Prospectus,
there were any changes, at a specified date not more
than five business days prior to the date of the
letter, in the long-term debt, common equity or
preferred stock (not subject to purchase or sinking
funds) of the Company and its subsidiaries, or
decreases in the stockholders' investment of the
Company and its subsidiaries, as compared with the
amounts shown on the most recent consolidated balance
sheet included or incorporated in the Registration
Statement and the Prospectus, or for the period from
the date of the most recent financial statements
included or incorporated in the Registration
Statement and the Prospectus to such specified date
there were any decreases, as compared with the
corresponding period in the preceding year in
operating revenues or operating income or income
before interest charges or in total or per share
amounts of net income of the Company and its
subsidiaries, except in all instances for changes or
decreases set forth in such letter, in which case the
letter shall be accompanied by an explanation by the
Company as to the significance thereof unless said
explanation is not deemed necessary by the Agents; or
(3) the amounts included under the caption
"Summary Consolidated Financial and Operating
Information" in the Prospectus, were not determined
on a basis substantially consistent with that of the
corresponding amounts in the audited financial
statements included or incorporated in the
Registration Statement and the Prospectus;
(iii) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature
(which is limited to accounting, financial or statistical
information derived from the general accounting records of the
Company and its subsidiaries) set forth in the Registration
Statement and the Prospectus, including certain of the
information included or incorporated in Items 1, 6, 7, 10 and
11 of the Company's Annual Report on Form 10-K, incorporated
in the
20
Registration Statement and the Prospectus, certain of the
information included in the "Management's Discussion and
Analysis of Financial Condition and Results of Operations"
included or incorporated in the Company's Quarterly Reports on
Form 10-Q, incorporated in the Registration Statement and the
Prospectus, and the information included in the Prospectus
under the captions "Ratio of Earnings to Fixed Charges" and
"Summary Consolidated Financial and Operating Information,"
agrees with the accounting records of the Company and its
subsidiaries, excluding any questions of legal interpretation;
and
(iv) if unaudited pro forma financial statements are
included or incorporated in the Registration Statement and the
Prospectus, on the basis of a reading of the unaudited pro
forma financial statements, carrying out certain specified
procedures, inquiries of certain officials of the Company and
its subsidiaries (including any entity which is acquired, by
merger or otherwise, after the Execution Time, and including
any entity which is the subject of any contract to acquire, by
merger or otherwise, on the date of such financial statements)
who have responsibility for financial and accounting matters,
and proving the arithmetic accuracy of the application of the
pro forma adjustments to the historical amounts in the pro
forma financial statements, nothing came to their attention
which caused them to believe that the pro forma financial
statements do not comply in form in all material respects with
the applicable accounting requirements of Rule 11-02 of
Regulation S-X or that the pro forma adjustments have not been
properly applied to the historical amounts in the compilation
of such statements.
References to the Prospectus in this paragraph (f) include any supplement
thereto at the date of the letter.
(g) Prior to the Execution Time, the Company shall have
furnished to each Agent such further information, documents, certificates,
letters from accountants and opinions of counsel as the Agents may reasonably
request.
If any of the conditions specified in this Section 5 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to such Agents and their counsel, this Agreement and all
obligations of any Agent hereunder may be canceled at any time by the Agents.
Notice of such cancellation shall be given to the Company in writing or by
telephone or telegraph confirmed in writing.
The documents required to be delivered by this Section 5 shall be
delivered at the office of McNair Law Firm, P.A., counsel for the Company, 1301
Gervais Street, Suite 1700, Columbia, South Carolina 29201, at the Execution
Time.
6. Conditions to the Obligations of the Purchaser.
The obligations of the Purchaser to purchase any Notes will be subject
to the accuracy of the representations and warranties on the part of the Company
herein as of the date of any related Terms Agreement and as of the Closing Date
for such Notes, to the performance and observance by the Company of all
covenants and agreements herein contained on its part to be performed and
observed and to the following additional conditions precedent:
21
(a) No stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and no
proceedings for that purpose shall have been instituted or threatened, or, to
the knowledge of the Company or any Agent, be contemplated by the Commission.
(b) If specified by any related Terms Agreement and except to
the extent modified by such Terms Agreement, the Purchaser shall have received,
appropriately updated, (i) a certificate of the Company, dated as of the Closing
Date, to the effect set forth in Section 5(e) (except that references to the
Prospectus shall be to the Prospectus as supplemented at the time of execution
of the Terms Agreement), (ii) the opinion of the General Counsel or the Deputy
General Counsel for the Company, dated as of the Closing Date, to the effect set
forth in Section 5(b), (iii) the opinion of McNair Law Firm, P.A., counsel for
the Company, dated as of the Closing Date, to the effect set forth in Section
5(c), (iv) the opinion of Thelen Reid & Priest LLP, counsel for the Purchaser,
dated as of the Closing Date, to the effect set forth in Section 5(d), and (v) a
letter of Deloitte & Touche LLP, independent accountants for the Company, dated
as of the Closing Date, to the effect set forth in Section 5(f).
(c) Prior to the Closing Date, the Company shall have
furnished to the Purchaser such further information, certificates and documents
as the Purchaser may reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement
and any Terms Agreement, or if any of the opinions and certificates mentioned
above or elsewhere in this Agreement or such Terms Agreement shall not be in all
material respects reasonably satisfactory in form and substance to the Purchaser
and its counsel, such Terms Agreement and all obligations of the Purchaser
thereunder and with respect to the Notes subject thereto may be canceled at, or
at any time prior to, the respective Closing Date by the Purchaser. Notice of
such cancellation shall be given to the Company in writing or by telephone or
telegraph confirmed in writing.
7. Right of Person Who Agreed to Purchase to Refuse to Purchase.
(a) The Company agrees that any person who has agreed to
purchase and pay for any Note, including a Purchaser and any person who
purchases pursuant to a solicitation by any of the Agents, shall have the right
to refuse to purchase such Note if, at the Closing Date therefor, any condition
set forth in Section 5 or 6, as applicable, shall not be satisfied in all
material respects.
(b) The Company agrees that any person who has agreed to
purchase and pay for any Note pursuant to a solicitation by any of the Agents
shall have the right to refuse to purchase such Note if, subsequent to the
agreement to purchase such Note, any change, condition or development specified
in any of the Sections 9 (b) (i) through (v) shall have occurred (without regard
to any judgment of a Purchaser required therein) the effect of which is, in the
judgment of the Agent which presented the offer to purchase such Note, so
material and adverse as to make it impractical or inadvisable to proceed with
the delivery of such Note (it being understood that under no circumstance shall
any such Agent have any duty or obligation to exercise the judgment permitted to
be exercised under this Section 7(b) and Section 9(b)).
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each of
you, the directors, officers, employees and agents of each of you and each
person who controls each of you within the meaning of either the Act or the
22
Exchange Act against any and all losses, claims, damages or liabilities, joint
or several, to which you, they or any of you or them may become subject under
the Act, the Exchange Act or other federal or state statutory law or regulation,
at common law 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 a material fact contained in the
Registration Statement for the registration of the Notes as originally filed or
in any amendment thereof, or in the Prospectus or any preliminary Prospectus, or
in any amendment thereof 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 agrees to reimburse each such indemnified party for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action, as incurred;
provided, however, that (i) the Company will 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 any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with written
information furnished to the Company by any of you specifically for use in
connection with the preparation thereof, and (ii) such indemnity with respect to
the Prospectus or any preliminary Prospectus shall not inure to the benefit of
any of you (or any person controlling any of you) from whom the person asserting
any such loss, claim, damage or liability purchased the Notes which are the
subject thereof if such person did not receive a copy of the Prospectus (or the
Prospectus as supplemented) excluding documents incorporated therein by
reference at or prior to the confirmation of the sale of such Notes to such
person in any case where such delivery is required by the Act and the untrue
statement or omission of a material fact contained in the Prospectus or any
preliminary Prospectus was corrected in the Prospectus (or the Prospectus as
supplemented). This indemnity agreement will be in addition to any liability
which the Company may otherwise have.
(b) Each of you agrees severally and not jointly to indemnify
and hold harmless the Company, each of its directors, each of its officers who
signs the Registration Statement and each person who controls the Company within
the meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company to you, but only with reference to written
information relating to such of you furnished to the Company by such of you
specifically for use in the preparation of the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to any
liability which you may otherwise have. The Company acknowledges that the
statements set forth in the third, fourth and fifth sentences of the third
paragraph, the third sentence of the fourth paragraph and the last paragraph
under the heading "Plan of Distribution" in the Prospectus, constitute the only
information furnished in writing by any of you for inclusion in the documents
referred to in the foregoing indemnity, and you confirm that such statements are
correct.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under this Section 8. In case any such action is brought against
any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein, and to the extent that it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof, with counsel satisfactory to
23
such indemnified party; provided, however, that if the defendants in any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate counsel to assert such
legal defenses and to otherwise participate in the defense of such action on
behalf of such indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of its election so to assume the
defense of such action and approval by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party under this
Section 8 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the next preceding
sentence (it being understood, however, that the indemnifying party shall not be
liable for the expenses of more than one separate counsel, approved by you in
the case of paragraph (a) of this Section 8, representing the indemnified
parties under such paragraph (a) who are parties to such action), (ii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of commencement of the action or (iii) the indemnifying party has
authorized the employment of counsel for the indemnified party at the expense of
the indemnifying party; and except that, if clause (i) or (iii) is applicable,
such liability shall be only in respect of the counsel referred to in such
clause (i) or (iii).
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph (a) of this
Section 8 is due in accordance with its terms but is for any reason held by a
court to be unavailable from the Company on grounds of policy or otherwise, the
Company and each of you shall contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably incurred
in connection with investigating or defending same) to which the Company and any
of you may be subject in such proportion so that each of you is responsible for
that portion represented by the percentage that the aggregate commissions
received by such of you pursuant to Section 2 in connection with the Notes from
which such losses, claims, damages and liabilities arise (or, in the case of
Notes sold pursuant to a Terms Agreement, the aggregate commissions that would
have been received by such of you if such commissions had been payable), bears
to the aggregate principal amount of such Notes sold and the Company is
responsible for the balance; provided, however, that (y) in no case shall any of
you be responsible for any amount in excess of the commissions received by such
of you in connection with the Notes from which such losses, claims, damages and
liabilities arise (or, in the case of Notes sold pursuant to a Terms Agreement,
the aggregate commissions that would have been received by such of you if such
commissions had been payable) and (z) 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. For purposes of this Section 8, each person who controls any
of you within the meaning of the Act shall have the same rights to contribution
as you and each person who controls the Company within the meaning of either the
Act or the Exchange Act, each officer of the Company who shall have signed the
Registration Statement and each director of the Company shall have the same
rights to contribution as the Company, subject in each case to clause (z) of
this paragraph (d). Any party entitled to contribution will, promptly after
receipt of notice of commencement of any action, suit or proceeding against such
party in respect of which a claim for contribution may be made against another
party or parties under this paragraph (d), notify such party or parties from
whom contribution may be sought, but the omission to so
24
notify such party or parties shall not relieve the party or parties from whom
contribution may be sought from any other obligation it or they may have
hereunder or otherwise than under this paragraph (d).
9. Termination.
This Agreement will continue in effect until terminated as provided in
this Section 9. In the event of such termination, no party shall have any
liability to the other party hereto, except as provided in the fourth and sixth
paragraphs of Section 2(a), and in Sections 4(h), 8 and 10.
(a) This Agreement may be terminated by either the Company as
to any of you or by any of you insofar as this Agreement relates to such of you,
by giving written notice of such termination to such of you or the Company, as
the case may be. This Agreement shall so terminate at the close of business on
the third business day following the receipt of such notice by the party to whom
such notice is given.
(b) Each Terms Agreement (whether oral or written) shall be
subject to termination in the absolute discretion of the Purchaser, by notice
given to the Company prior to delivery of any payment for any Note to be
purchased thereunder, if prior to such time (i) there shall have occurred,
subsequent to the agreement to purchase such Note, any change, or any
development involving a prospective change, in or affecting the business or
properties of the Company and its subsidiaries the effect of which is, in the
judgment of the Purchaser, so material and adverse as to make it impractical or
inadvisable to proceed with the delivery of such Note, (ii) there shall have
been, subsequent to the agreement to purchase such Note, any decrease in the
rating of any of the Company's debt securities by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule 436(g) under
the Act) or any notice given of any intended or potential decrease in any such
rating or of a possible change in any such rating that does not indicate the
direction of the possible change, (iii) trading in the Company's Common Stock
shall have been suspended by the Commission or the New York Stock Exchange or
trading in securities generally on The New York Stock Exchange shall have been
suspended or limited or minimum prices shall have been established on such
Exchange, (iv) a banking moratorium shall have been declared either by federal
or New York state authorities, or (v) there shall have occurred any outbreak or
escalation of hostilities, declaration by the United States of a national
emergency or war or other calamity or crisis the effect of which on financial
markets is such as to make it, in the judgment of the Purchaser, impracticable
or inadvisable to proceed with the offering or delivery of such Notes as
contemplated by the Prospectus (exclusive of any supplement thereto.)
10. Representations and Indemnities to Survive.
The respective agreements, representations, warranties, indemnities and
other statements of the Company or its officers and of you set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation made by or on behalf of you or the Company or any of the
officers, directors or controlling persons referred to in Section 8 hereof, and
will survive delivery of and payment for the Notes. The provisions of the fourth
and sixth paragraphs of Section 2(a) and of Sections 4(h) and 8 hereof shall
survive the termination or cancellation of this Agreement. The provisions of
this Agreement (including without limitation Section 7 hereof) applicable to any
purchase of a Note for which an agreement to purchase exists prior to the
termination hereof shall survive any termination of this Agreement.
11. Notices.
25
All communications hereunder will be in writing and effective only on
receipt, and, if sent to any of you, will be mailed, delivered, telecopied or
telegraphed and confirmed to such of you, at the address specified in Schedule I
hereto; or, if sent to the Company, will be mailed, delivered or telegraphed and
confirmed to it at 1426 Main Street, Columbia, South Carolina 29201, attention
of the General Counsel.
12. Successors.
This Agreement will inure to the benefit of and be binding upon the
parties hereto and their respective successors, directors, officers, employees,
agents and controlling persons and controlling persons referred to in Section 8
hereof, and, to the extent provided in Section 7, any person who has agreed to
purchase Notes, and no other person will have any right or obligation hereunder.
13. Applicable Law.
This Agreement will be governed by and construed in accordance with the
laws of the State of New York.
26
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and you.
Very truly yours,
SCANA Corporation
By: /s/ Mark Cannon
-------------------------------------
Its: Controller
------------------------------------
The foregoing Agreement is hereby confirmed and accepted as of the date hereof.
UBS Warburg LLC
By: /s/ Scott Whitney
---------------------------------
Its: Associate Director
---------------------------------
Credit Suisse First Boston Corporation
By: /s/ Helena M. Willner
---------------------------------
Its: Director
---------------------------------
Banc of America Securities LLC
By: /s/ Lilly Chang
----------------------------------
Its: Principal
----------------------------------
First Union Securities, Inc.
By: /s/ James T. Williams, Jr.
----------------------------------
Its: Director
----------------------------------
27
EXHIBIT A
SCANA
CORPORATION
Medium-Term Note Administrative Procedures
January 23, 2002
The Medium-Term Notes, Due from Nine Months or More from Date
of Issue in an aggregate principal amount of $800,000,000 (the "Notes") of SCANA
Corporation (the "Company") are to be offered on a continuing basis. UBS Warburg
LLC, Credit Suisse First Boston Corporation, Banc of America Securities LLC, and
First Union Securities, Inc. as agents (each an "Agent," and collectively the
"Agents"), have agreed to solicit purchases of Notes issued in fully registered
form. The Agents will not be obligated to purchase Notes for their own account.
The Notes are being sold pursuant to a Selling Agency Agreement between the
Company and the Agents dated the date hereof (the "Agency Agreement"). The Notes
will rank pari passu with all other unsecured and unsubordinated debt of the
Company and have been registered with the Securities and Exchange Commission
(the "Commission"). The Notes will be issued under the Indenture dated as of
November 1, 1989 (the "Indenture"), between the Company and The Bank of New
York, as trustee (the "Trustee").
The Agency Agreement provides that Notes may also be purchased
by an Agent acting solely as principal and not as agent. In the event of any
such purchase, the functions of both the Agent and the beneficial owner under
the administrative procedures set forth below shall be performed by such Agent
acting solely as principal, unless otherwise agreed to between the Company and
such Agent acting as principal.
Each Note will be represented by either a Global Security (as
defined hereinafter) delivered to the Trustee, as agent for The Depository Trust
Company ("DTC"), and recorded in the book-entry system maintained by DTC (a
"Book-Entry Note") or a certificate delivered to the Holder thereof or a Person
designated by such Holder (a "Certificated Note"). Only Notes denominated and
payable in U.S. dollars may be issued as Book-Entry Notes. An owner of a
beneficial interest in a Book-Entry Note will not be entitled to receive a
certificate representing such Note.
The procedures to be followed during, and the specific terms
of, the solicitation of orders by the Agents and the sale as a result thereof by
the Company are explained below. Administrative and record-keeping
responsibilities will be handled for the Company by its Treasury Department. The
Company will advise the Agents and the Trustee in writing of those persons
handling administrative responsibilities with whom the Agents and the Trustee
are to communicate regarding orders to purchase Notes and the details of their
delivery.
Administrative procedures and specific terms of the offering
are explained below. Book-Entry Notes will be issued in accordance with the
administrative procedures set forth in Part I hereof, as adjusted in accordance
with changes in DTC's operating requirements, and Certificated Notes will be
issued in accordance with the administrative procedures set forth in Part II
hereof. Unless otherwise defined herein, terms defined in the Indenture and the
Notes shall be used herein as therein defined. Notes for which interest is
calculated on the basis of a fixed interest rate, which may be zero, are
referred to herein as "Fixed Rate Notes." Notes for which
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interest is calculated on the basis of a floating interest rate are referred to
herein as "Floating Rate Notes." To the extent the procedures set forth below
conflict with the provisions of the Notes, the Indenture, DTC's operating
requirements or the Agency Agreement, the relevant provisions of the Notes, the
Indenture, DTC's operating requirements and the Agency Agreement shall control.
All communications hereunder will be in writing and effective
only upon receipt, and, if sent, will be mailed, delivered, telecopied or
telegraphed and confirmed to the Agents and the Company at the following
addresses:
If to the Company:
SCANA Corporation
1426 Main Street
Columbia, South Carolina 29201
Attention: General Counsel
If to UBS Warburg LLC:
UBS Warburg LLC
677 Washington Boulevard
Stamford, Connecticut 06901
Attention: Debt Capital Markets Groups
If to Credit Suisse First Boston Corporation:
Credit Suisse First Boston Corporation
Eleven Madison Avenue
New York, New York 10010
Attention: Short and Medium Term Products Group
If to Banc of America Securities LLC:
Banc of America Securities LLC
Bank of America Corporate Center
100 North Tryon Street, NC1-007-07-01
Charlotte, North Carolina 28255
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If to First Union Securities, Inc.:
First Union Securities, Inc.
One First Union Center
301 South College Street
TW8, NC0604
Charlotte, NC 28288
Attn: Jim Williams
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PART I
Administrative Procedures for
Book-Entry Notes
In connection with the qualification of the Book-Entry Notes
for eligibility in the book-entry system maintained by DTC, the Trustee will
perform the custodial, document control and administrative functions described
below, in accordance with its respective obligations under a Letter of
Representations from the Company and the Trustee to DTC and a Medium-Term Note
Certificate Agreement between the Trustee and DTC and its obligations as a
participant in DTC, including DTC's Same-Day Funds Settlement system ("SDFS").
Issuance:
On any date of settlement (as defined under "Settlement" below) for one
or more Book-Entry Notes (each a "Settlement Date"), the Company will
issue a single global security in fully registered form without coupons
(a "Global Security") representing up to $400,000,000 principal amount
of all such Book-Entry Notes that have the same original issue date,
original issue discount provisions, if any, Interest Payment Dates,
Regular Record Dates, Interest Payment Period, redemption provisions,
if any, Maturity Date, and, in the case of Fixed Rate Notes, interest
rate, in the case of Floating Rate Notes, initial interest rate, Base
Rate, Index Maturity, Interest Reset Period, Interest Reset Dates,
Spread or Spread Multiplier, if any, minimum interest rate, if any,
maximum interest rate, if any and, in the case of a Floating Rate
Book-Entry Note for which the Base Rate is LIBOR, whether LIBOR
Reuters, LIBOR Telerate or another LIBOR reference is applicable to the
Note and the Designated LIBOR Currency (collectively, the "Terms").
Each Global Security will be dated and issued as of the date of its
authentication by the Trustee. Each Global Security will bear an
Original Issue Date, which will be (i) with respect to an original
Global Security (or any portion thereof), the original issue date
specified in such Global Security and (ii) following a consolidation of
Global Securities, with respect to the Global Security resulting from
such consolidation, the most recent Interest Payment Date to which
interest has been paid or duly provided for on the predecessor Global
Securities, regardless of the date of authentication of such resulting
Global Security. No Global Security will represent (i) both Fixed Rate
and Floating Rate Book-Entry Notes or (ii) any Certificated Note.
Identification
CUSIP Numbers:
The Company has arranged with the CUSIP Service Bureau (the "CUSIP
Service Bureau") of Standard & Poor's, a Division of The McGraw-Hill
Companies, Inc. ("Standard & Poor's") for the reservation of a series
of CUSIP numbers, which series consists of approximately 900 CUSIP
numbers and relates to Global Securities representing Book-Entry Notes
and book-entry medium-term notes issued by the Company with other
series designations. The Trustee, the Company and DTC have obtained
from the CUSIP Service Bureau a written list
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of such reserved CUSIP numbers. The Company will assign CUSIP numbers
to Global Securities as described below under Settlement Procedure "B."
DTC will notify the CUSIP Service Bureau periodically of the CUSIP
numbers that the Company has assigned to Global Securities. The Trustee
will notify the Company at any time when fewer than 100 of the reserved
CUSIP numbers remain unassigned to Global Securities, and, if it deems
necessary, the Company will reserve additional CUSIP numbers for
assignment to Global Securities. Upon obtaining such additional CUSIP
numbers, the Company shall deliver a list of such additional CUSIP
numbers to the Trustee and DTC.
Registration:
Global Securities will be issued only in fully registered form without
coupons. Each Global Security will be registered in the name of CEDE &
CO., as nominee for DTC, on the securities register for the Notes
maintained under the Indenture. The beneficial owner of a Book-Entry
Note (or one or more indirect participants in DTC designated by such
owner) will designate one or more participants in DTC (with respect to
such Book-Entry Note, the "Participants") to act as agent or agents for
such owner in connection with the book-entry system maintained by DTC,
and DTC will record in book-entry form, in accordance with instructions
provided by such Participants, a credit balance with respect to such
beneficial owner in such Book-Entry Note in the account of such
Participants. The ownership interest of such beneficial owner (or such
participant) in such Book-Entry Note will be recorded through the
records of such Participants or through the separate records of such
Participants and one or more indirect participants in DTC.
Transfers:
Transfers of a Book-Entry Note will be accomplished by book entries
made by DTC and, in turn, by Participants (and in certain cases, one or
more indirect participants in DTC) acting on behalf of beneficial
transferors and transferees of such Note.
Exchanges:
The Trustee may deliver to DTC and the CUSIP Service Bureau at any time
a written notice of consolidation (a copy of which shall be attached to
the resulting Global Security described below) specifying (i) the CUSIP
numbers of two or more Outstanding Global Securities that represent (A)
Fixed Rate Book-Entry Notes having the same Terms and for which
interest has been paid to the same date or (B) Floating Rate Book-Entry
Notes having the same Terms and for which interest has been paid to the
same date, (ii) a date, occurring at least thirty days after such
written notice is delivered and at least thirty days before the next
Interest Payment Date for such Book-Entry Notes, on which such Global
Securities shall be exchanged for a single replacement Global Security
and (iii) a new CUSIP number, obtained from the Company, to be assigned
to such replacement Global Security. Upon receipt of such a notice, DTC
will send to its participants (including the Trustee) a written
reorganization notice to the effect that such exchange will occur on
such date. Prior to the
A-5
specified exchange date, the Trustee will deliver to the CUSIP Service
Bureau a written notice setting forth such exchange date and such new
CUSIP number and stating that, as of such exchange date, the CUSIP
numbers of the Global Securities to be exchanged will no longer be
valid. On the specified exchange date, the Trustee will exchange such
Global Securities for a single Global Security bearing the new CUSIP
number and the CUSIP numbers of the exchanged Global Securities will,
in accordance with CUSIP Service Bureau procedures, be canceled and not
immediately reassigned. Notwithstanding the foregoing, if the Global
Securities to be exchanged exceed $400,000,000 in aggregate principal
amount, one Global Security will be authenticated and issued to
represent each $400,000,000 of principal amount of the exchanged Global
Securities and an additional Global Security will be authenticated and
issued to represent any remaining principal amount of such Global
Securities (see "Denominations" below).
Maturities:
Each Book-Entry Note will mature on a date not less than nine months
after the settlement date for such Note.
Notice of
Repayment Terms:
With respect to each Book-Entry Note that is repayable at the option of
the Holder, the Trustee will furnish DTC on the settlement date
pertaining to such Note a notice setting forth the terms of such
repayment option. Such terms shall include the start date and end dates
of the first exercise period, the purchase date following such first
exercise period, the frequency that such exercise periods shall occur
(i.e., quarterly, semi-annually, annually, bi-annually, etc.) and if
the repayment option expires before maturity, the same information
(except frequency) concerning the last exercise period. It is
understood that the exercise period shall be at least fifteen calendar
days long and that the purchase date shall be at least seven calendar
days after the last day of the exercise period.
Denominations:
Book-Entry Notes will be issued in principal amounts of $1,000 or any
amount in excess thereof that is an integral multiple of $1,000. Global
Securities will be denominated in principal amounts not in excess of
$400,000,000. If one or more Book-Entry Notes having an aggregate
principal amount in excess of $400,000,000 would, but for the preceding
sentence, be represented by a single Global Security, then one Global
Security will be authenticated and issued to represent each
$400,000,000 principal amount of such Book-Entry Note or Notes and an
additional Global Security will be authenticated and issued to
represent any remaining principal amount of such Book-Entry Note or
Notes. In such a case, each of the Global Securities representing such
Book-Entry Note or Notes shall be assigned the same CUSIP number.
Interest:
General. Interest, if any, on each Book-Entry Note will accrue from the
original issue date for the first interest
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period or the last date to which interest has been paid, if
any, for each subsequent interest period, on the Global
Security representing such Book-Entry Note, and will be
calculated and paid in the manner described in such Book-Entry
Note and in the Prospectus (as defined in the Agency
Agreement), as supplemented by the applicable Pricing
Supplement. Unless otherwise specified therein, each payment
of interest on a Book-Entry Note will include interest accrued
to but excluding the Interest Payment Date (provided that, in
the case of Floating Rate Book-Entry Notes which reset daily
or weekly, interest payments will include accrued interest to
and including the day immediately preceding the Interest
Payment Date) or to but excluding Maturity. Interest payable
at the Maturity of a Book-Entry Note will be payable to the
Person to whom the principal of such Note is payable. Standard
& Poor's will use the information received in the pending
deposit message described under Settlement Procedure "C" below
in order to include the amount of any interest payable and
certain other information regarding the related Global
Security in the appropriate (daily or weekly) bond report
published by Standard & Poor's.
Regular Record Dates. The Regular Record Date with respect to
any Interest Payment Date shall be the date fifteen calendar
days immediately preceding such Interest Payment Date (unless
otherwise specified pursuant to Settlement Procedure "A"
below).
Interest Payment Dates on Fixed Rate Book-Entry Notes. Unless
otherwise specified pursuant to Settlement Procedure "A"
below, interest payments on Fixed Rate Book-Entry Notes will
be made semi-annually on April 1, and October 1 of each year
and at Maturity; provided, however, that in the case of a
Fixed Rate Book-Entry Note issued between a Regular Record
Date and an Interest Payment Date, the first interest payment
will be made on the Interest Payment Date following the next
succeeding Regular Record Date to the Person in whose name
such Note is registered on the Regular Record Date for such
succeeding Interest Payment Date.
Interest Payment Dates on Floating Rate Book-Entry Notes.
Interest payments will be made on Floating Rate Book-Entry
Notes monthly, quarterly, semi-annually or annually. Unless
otherwise agreed upon, interest will be payable, in the case
of Floating Rate Book-Entry Notes with a monthly Interest
Payment Period, on the third Wednesday of each month; with a
quarterly Interest Payment Period, on the third Wednesday of
March, June, September and December of each year; with a
semi-annual Interest Payment Period on the third Wednesday of
the two months specified pursuant to Settlement Procedure "A"
below; and with an annual Interest Payment Period, on the
third Wednesday of the month specified pursuant to Settlement
Procedure "A" below; provided, however, that if an Interest
Payment Date for a Floating Rate Book-Entry Note would
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otherwise be a day that is not a Business Day with respect to
such Floating Rate Book-Entry Note, such Interest Payment Date
will be the next succeeding Business Day with respect to such
Floating Rate Book-Entry Note, except in the case of a
Floating Rate Book-Entry Note for which the Base Rate is
LIBOR, if such Business Day is in the next succeeding calendar
month, such Interest Payment Date will be the immediately
preceding Business Day; and provided further, that in the case
of a Floating Rate Book-Entry Note issued between a Regular
Record Date and an Interest Payment Date or on an Interest
Payment Date, the first interest payment will be made on the
Interest Payment Date following the next succeeding Regular
Record Date to the Person in whose name such Note is
registered on the Regular Record Date for such succeeding
Interest Payment Date.
Notice of Interest Payment and Regular Record Dates. At the
request of the Company the Trustee will deliver to the Company
and DTC a written list of Regular Record Dates and Interest
Payment Dates that will occur with respect to Book-Entry Notes
during the six-month period beginning on such first Business
Day. Promptly after each Interest Determination Date for
Floating Rate Book-Entry Notes, the Trustee (or such other
party appointed by the Company to perform such function), as
Calculation Agent, will notify Standard & Poor's of the
interest rates determined on such Interest Determination Date.
Calculation of
Interest:
Fixed Rate Book-Entry Notes. Interest on Fixed Rate Book-Entry Notes
(including interest for - partial periods) will be calculated
on the basis of a 360-day year of twelve thirty-day months.
Floating Rate Book-Entry Notes. Interest rates on Floating
Rate Book-Entry Notes will be determined as set forth in the
form of Notes. Interest on Floating Rate Book-Entry Notes,
except as otherwise set forth therein, will be calculated on
the basis of actual days elapsed and a year of 360 days,
except that in the case of a Floating Rate Book-Entry Note for
which the Base Rate is Treasury Rate, interest will be
calculated on the basis of the actual number of days in the
year.
Payments of
Principal and
Interest:
Payment of Interest Only. Promptly after each Regular Record Date, the
Trustee will deliver to the Company and DTC a written notice
setting forth, by CUSIP number, the amount of interest to be
paid on each Global Security on the following Interest Payment
Date (other than an Interest Payment Date coinciding with
Maturity) and the total of such amounts. DTC will confirm the
amount payable on each Global Security on such Interest
Payment Date by reference to the appropriate (daily or weekly)
bond reports published by Standard & Poor's. The Company will
pay to the Trustee, as paying agent,
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the total amount of interest due on such Interest Payment Date
(other than at Maturity), and the Trustee will pay such amount
to DTC, at the times and in the manner set forth below under
"Manner of Payment." If any Interest Payment Date for a Fixed
Rate Book-Entry Note is not a Business Day, the payment due on
such day shall be made on the next succeeding Business Day and
no interest shall accrue on such payment for the period from
and after such Interest Payment Date. If any Interest Payment
Date (other than a Maturity Date) for a Floating Rate
Book-Entry Note is not a Business Day, the payment due on such
day shall be made on the next succeeding Business Day and
interest shall continue to accrue to but not including such
succeeding Business Day, except that in the case of an
Interest Payment Date on a Floating Rate Note for which the
Base Rate is LIBOR, if such Business Day is in the succeeding
calendar month, such Interest Payment Date will be the
preceding Business Day.
Payments at Maturity. On or about the first Business Day of
each month, the Trustee will deliver to the Company and DTC a
written list of principal and interest to be paid on each
Global Security maturing (on a Maturity or Redemption Date or
otherwise) in the following month. The Company and DTC will
confirm the amounts of such principal and interest payments
with respect to each such Global Security on or about the
fifth Business Day preceding the Maturity of such Global
Security. On or before Maturity, the Company will pay to the
Trustee, as paying agent, the principal amount of such Global
Security, together with interest due at such Maturity. The
Trustee will pay such amount to DTC at the times and in the
manner set forth below under "Manner of Payment." If any
Maturity of a Global Security representing Book-Entry Notes is
not a Business Day, the payment due on such day shall be made
on the next succeeding Business Day and no interest shall
accrue on such payment for the period from and after such
Maturity. Promptly after payment to DTC of the principal and
interest due at Maturity of such Global Security, the Trustee
will cancel such Global Security in accordance with the
Indenture and so advise the Company.
Manner of Payment. The total amount of any principal and
interest due on Global Securities on any Interest Payment Date
or at Maturity shall be paid by the Company to the Trustee in
immediately available funds no later than 9:30 A.M. (New York
City time) on such date. The Company will make such payment on
such Global Securities by instructing the Trustee to withdraw
funds from an account maintained by the Company at the Trustee
or by wire transfer to the Trustee. The Company will confirm
any such instructions in writing to the Trustee. On each
payment date the Trustee will pay DTC in accordance with DTC's
standard procedures. On each Interest Payment Date (other than
at Maturity), interest payments shall be made to DTC, in funds
available for immediate use by DTC, in accordance with
existing
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arrangements between the Trustee and DTC. On each such date,
DTC will pay, in accordance with its SDFS operating procedures
then in effect, such amounts in funds available for immediate
use to the respective Participants in whose names the
Book-Entry Notes represented by such Global Securities are
recorded in the book-entry system maintained by DTC. Neither
the Company (as issuer or as paying agent) nor the Trustee
shall have any direct responsibility or liability for the
payment by DTC to such Participants of the principal of and
interest on the Book-Entry Notes.
Withholding Taxes. The amount of any taxes required under
applicable law to be withheld from any interest payment on a
Book-Entry Note will be determined and withheld by the
Participant, indirect participant in DTC or other Person
responsible for forwarding payments and materials directly to
the beneficial owner of such Note.
Procedure for
Setting and
Posting:
The Company and the Agents will discuss from time to time the
aggregate principal amount of, the issuance price of, and the
interest rates to be borne by, Book-Entry Notes that may be
sold as a result of the solicitation of orders by the Agents.
If the Company decides to set prices of, and rates borne by,
any Book-Entry Notes in respect of which the Agents are to
solicit orders (the setting of such prices and rates to be
referred to herein as "posting") or if the Company decides to
change prices or rates previously posted by it, it will
promptly advise the Agents of the prices and rates to be
posted.
Acceptance and
Rejection of
Orders:
Unless otherwise instructed by the Company, each Agent will advise
the Company promptly by telephone of all orders to purchase
Book-Entry Notes received by such Agent, other than those
rejected by it in whole or in part in the reasonable exercise
of its discretion. Unless otherwise agreed by the Company and
the Agents, the Company has the right to accept orders to
purchase Book-Entry Notes and may reject any such orders in
whole or in part.
Preparation of
Pricing Supplement:
If any order to purchase a Book-Entry Note is accepted by or
on behalf of the Company, the Company will prepare a pricing
supplement (a "Pricing Supplement") reflecting the terms of
such Book-Entry Note and will arrange to have the Pricing
Supplement filed with the Commission in accordance with the
applicable paragraph of Rule 424(b) under the Act and will
supply ten copies thereof (and additional copies if requested)
to the Agent which presented the order (the "Presenting
Agent"). The Presenting Agent will cause a Prospectus and
Pricing Supplement to be delivered to the purchaser of such
Book-Entry Note.
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In each instance that a Pricing Supplement is prepared, the
Presenting Agent will affix the Pricing Supplement to
Prospectuses prior to their use. Outdated Pricing Supplements
(other than those retained for files) will be destroyed.
Suspension of
Solicitation;
Amendment or
Supplement:
Subject to the Company's representations, warranties and covenants
contained in the Agency Agreement, the Company may instruct
the Agents to suspend at any time, for any period of time or
permanently, the solicitation of orders to purchase Book-Entry
Notes. Upon receipt of such instructions, the Agents will
forthwith suspend solicitation until such time as the Company
has advised them that such solicitation may be resumed.
In the event that at the time the Company suspends
solicitation of purchases there shall be any orders
outstanding for settlement, the Company will promptly advise
the Agents and the Trustee whether such orders may be settled
and whether copies of the Prospectus as in effect at the time
of the suspension, together with the appropriate Pricing
Supplement, may be delivered in connection with the settlement
of such orders. The Company will have the sole responsibility
for such decision and for any arrangements that may be made in
the event that the Company determines that such orders may not
be settled or that copies of such Prospectus may not be so
delivered.
If the Company decides to amend or supplement the Registration
Statement (as defined in the Agency Agreement) or the
Prospectus, it will promptly advise the Agents and furnish the
Agents with the proposed amendment or supplement and with such
certificates and opinions as are required, all to the extent
required by and in accordance with the terms of the Agency
Agreement. Subject to the provisions of the Agency Agreement,
the Company may file with the Commission any such supplement
to the Prospectus relating to the Notes. The Company will
provide the Agents and the Trustee with copies of any such
supplement, and confirm to the Agents that such supplement has
been filed with the Commission pursuant to the applicable
paragraph of Rule 424(b).
Procedures For
Rate Changes:
When the Company has determined to change the interest rates of
Book-Entry Notes being offered, it will promptly advise the
Agents and the Agents will forthwith suspend solicitation of
orders. The Agents will telephone the Company with
recommendations as to the changed interest rates. At such time
as the Company has advised the Agents of the new interest
rates, the Agents may resume solicitation of orders. Until
such time only "indications of interest" may be recorded.
Within two Business Days after any sale of Book-Entry Notes,
the Company will file with the Commission a
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Pricing Supplement to the Prospectus relating to such
Book-Entry Notes that reflects the applicable interest rates
and other terms and will deliver copies of such Pricing
Supplement to the Agents.
Delivery of
Prospectus:
A copy of the Prospectus and, where applicable, a Pricing Supplement,
relating to a Book-Entry Note, must accompany or precede the
earliest of any written offer by any Agent of such Book-Entry
Note, confirmation of the purchase of such Book-Entry Note, or
payment for such Book-Entry Note by its purchaser. If notice
of a change in the terms of the Book-Entry Notes is received
by the Agents between the time an order for a Book-Entry Note
is placed and the time written confirmation thereof is sent by
the Presenting Agent to a customer or his agent, such
confirmation shall be accompanied by a Prospectus and Pricing
Supplement setting forth the terms in effect when the order
was placed. Subject to "Suspension of Solicitation; Amendment
or Supplement" above, the Presenting Agent timely will deliver
a Prospectus and Pricing Supplement as herein described with
respect to each Book-Entry Note sold by it. The Company will
make such delivery if such Book-Entry Note is sold directly by
the Company to a purchaser (other than an Agent).
Confirmation:
For each order to purchase a Book-Entry Note solicited by any
Agent and accepted by or on behalf of the Company, the
Presenting Agent will issue a confirmation to the purchaser,
with a copy to the Company, setting forth the details set
forth above and delivery and payment instructions.
Settlement:
The receipt by the Company of immediately available funds in payment
for a Book-Entry Note and the authentication and issuance of
the Global Security representing such Book-Entry Note shall
constitute "settlement" with respect to such Book-Entry Note.
All orders accepted by the Company will be settled on the
third Business Day following the date of sale of such
Book-Entry Note pursuant to the timetable for settlement set
forth below unless the Company, the Trustee and the purchaser
agree to settlement on another day which shall be no earlier
than the next Business Day following the date of sale.
Settlement
Procedures:
Settlement Procedures with regard to each Book-Entry Note sold by the
Company through any Agent, as agent, shall be as follows:
A. The Presenting Agent will advise the Company by
telephone of the following settlement information:
1. Principal amount.
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2. Maturity Date.
3. In the case of a Fixed Rate Book-Entry Note,
the interest rate or, in the case of a
Floating Rate Book-Entry Note, the Base
Rate, initial interest rate (if known at
such time), Index Maturity, Interest Reset
Period, Interest Reset Dates, Spread or
Spread Multiplier (if any), minimum interest
rate (if any), maximum interest rate (if
any) and, in the case of a Floating Rate
Book-Entry Note for which the Base Rate is
LIBOR, whether LIBOR Reuters, LIBOR Telerate
or another LIBOR reference is applicable to
the Notes and the Designated LIBOR Currency.
4. Interest Payment Dates, Regular Record Dates
(if other than the dates fifteen calendar
days preceding such Interest Payment Dates),
the Interest Payment Period, Interest
Determination Dates, the Calculation Dates
and the Calculation Agent.
5. Redemption provisions, if any.
6. Settlement date.
7. Price.
8. Presenting Agent's commission, determined as
provided in Section 2 of the Agency
Agreement.
B. The Company will assign a CUSIP number to the Global
Security representing such Book-Entry Note and then
advise the Trustee by telephone (confirmed in writing
at any time on the same date) or electronic
transmission of the information set forth in
Settlement Procedure "A" above, such CUSIP number and
the name of the Presenting Agent. The Company will
also notify the Presenting Agent by telephone of such
CUSIP number as soon as practicable. Each such
communication by the Company shall constitute a
representation and warranty by the Company to the
Trustee and the Agents that (i) such Book-Entry Note
is then, and at the time of issuance and sale thereof
will be, duly authorized for issuance and sale by the
Company, (ii) such Book-Entry Note, and the Global
Security representing such Book-Entry Note, will
conform with the terms of the Indenture, and (iii)
after giving effect to the issuance of such
Book-Entry Note and any other Securities (as defined
in the Agency Agreement) to be issued on or prior to
the settlement date for the sale of such Book-Entry
Note, the aggregate amount of Securities which have
been issued and sold by the Company will not exceed
the amount of Securities
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registered under the Registration Statement (as
defined in the Agency Agreement).
C. The Trustee will enter a pending deposit message
through DTC's Participant Terminal System providing
the following settlement information to DTC (which
shall route such information to Standard & Poor's)
and the Presenting Agent:
1. The information set forth in Settlement
Procedure "A."
2. Identification as a Fixed Rate Book-Entry
Note or a Floating Rate Book-Entry Note.
3. Initial Interest Payment Date for such
Book-Entry Note, number of days by which
such date succeeds the related Regular
Record Date (or, in the case of Floating
Rate Notes which reset daily or weekly, the
date five calendar days immediately
preceding the Interest Payment Date) and
amount of interest payable on such Interest
Payment Date (which amount shall be
confirmed by the Trustee).
4. The Interest Payment Period.
5. CUSIP number of the Global Security
representing such Book-Entry Note.
6. Whether such Global Security will represent
any other Book-Entry Note (to the extent
known at such time).
D. To the extent the Company has not already done so,
the Company will deliver to the Trustee a Global
Security in a form that has been approved by the
Company, the Agents and the Trustee.
E. The Trustee will complete such Book-Entry Note, stamp
the appropriate legend, as instructed by DTC, if not
already set forth thereon, and authenticate the
Global Security representing such Book-Entry Note.
F. DTC will credit such Book-Entry Note to the Trustee's
participant account at DTC.
G. The Trustee will enter an SDFS deliver order through
DTC's Participant Terminal System instructing DTC to
(i) debit such Book-Entry Note to the Trustee's
participant account and credit such Book-Entry Note
to the Presenting Agent's participant account and
(ii) debit the Presenting Agent's settlement account
and credit the Trustee's settlement account for an
amount equal to the price of such Book-Entry Note
less the Presenting Agent's commission. The entry of
such a deliver order shall constitute a
representation and warranty by the Trustee to
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DTC that (i) the Global Security representing such
Book-Entry Note has been issued and authenticated and
(ii) the Trustee is holding such Global Security
pursuant to the Medium-Term Note Certificate
Agreement between the Trustee and DTC.
H. The Presenting Agent will enter an SDFS deliver order
through DTC's Participant Terminal System instructing
DTC (i) to debit such Book-Entry Note to the
Presenting Agent's participant account and credit
such Book-Entry Note to the participant accounts of
the Participants with respect to such Book-Entry Note
and (ii) to debit the settlement accounts of such
Participants and credit the settlement account of the
Presenting Agent for an amount equal to the price of
such Book-Entry Note.
I. Transfers of funds in accordance with SDFS deliver
orders described in Settlement Procedures "G" and "H"
will be settled in accordance with SDFS operating
procedures in effect on the settlement date.
J. The Trustee will, upon receipt of funds from the
Agent in accordance with Settlement Procedure "G,"
wire transfer to the account of the Company
maintained at The Bank of New York funds available
for immediate use in the amount transferred to the
Trustee in accordance with Settlement Procedure "G."
K. The Presenting Agent will confirm the purchase of
such Book-Entry Note to the purchaser either by
transmitting to the Participants with respect to such
Book-Entry Note a confirmation order or orders
through DTC's institutional delivery system or by
mailing a written confirmation to such purchaser.
Settlement
Procedures
Timetable:
For orders of Book-Entry Notes solicited by any Agent and accepted
by the Company for settlement on the first Business Day after
the sale date, Settlement Procedures "A" through "K" set forth
above shall be completed as soon as possible but not later
than the respective times (New York City time) set forth
below:
Settlement
Procedure Time
A 11:00 A.M. on the sale date
B 12:00 Noon on the sale date
C 2:00 P.M. on the sale date
D 3:00 P.M. on the Business Day before
settlement
E 9:00 A.M. on Settlement Date
F 10:00 A.M. on Settlement Date
G-H 2:00 P.M. on Settlement Date
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I 4:45 P.M. on Settlement Date
J-K 5:00 P.M. on Settlement Date
If a sale is to be settled more than one Business Day after
the sale date, Settlement Procedures "A," "B" and "C" shall be
completed as soon as practicable but no later than 11:00 A.M.
and 5:00 P.M. on the first Business Day after the sale date
and no later than 2:00 P.M. on the Business Day before the
settlement date (unless the sale is settled two Business Days
after the sale date, in which case no later than 9:00 A.M. on
the settlement date), respectively. If the initial interest
rate for a Floating Rate Book-Entry Note has not been
determined at the time that Settlement Procedure "A" is
completed, Settlement Procedures "B" and "C" shall be
completed as soon as such rate has been determined but no
later than 12:00 Noon and 2:00 P.M., respectively, on the
Business Day before the settlement date. Settlement Procedure
"I" is subject to extension in accordance with any extension
of Fedwire closing deadlines and in the other events specified
in SDFS operating procedures in effect on the settlement date.
If settlement of a Book-Entry Note is rescheduled or canceled,
the Trustee will deliver to DTC, through DTC's Participant
Terminal System, a cancellation message to such effect by no
later than 2:00 P.M. on the Business Day immediately preceding
the scheduled settlement date.
Failure to
Settle:
If the Trustee fails to enter an SDFS deliver order with respect
to a Book-Entry Note pursuant to Settlement Procedure "G," the
Trustee may deliver to DTC, through DTC's Participant Terminal
System, as soon as practicable, a withdrawal message
instructing DTC to debit such Book-Entry Note to the Trustee's
participant account. DTC will process the withdrawal message,
provided that the Trustee's participant account contains a
principal amount of the Global Security representing such
Book-Entry Note that is at least equal to the principal amount
to be debited. If a withdrawal message is processed with
respect to all the Book-Entry Notes represented by a Global
Security, the Trustee will cancel such Global Security in
accordance with the Indenture and so advise the Company and
will make appropriate entries in its records. The CUSIP number
assigned to such Global Security shall, in accordance with
CUSIP Service Bureau procedures, be canceled and not
immediately reassigned. If a withdrawal message is processed
with respect to one or more, but not all, of the Book-Entry
Notes represented by a Global Security, the Trustee will
exchange such Book-Entry Note for two Global Securities, one
of which shall represent such Book-Entry Notes and shall be
canceled immediately after issuance and the other of which
shall represent the other Book-Entry Notes previously
represented by the surrendered Global Security and shall bear
the CUSIP number of the surrendered Global Security.
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If the purchase price for any Book-Entry Note is not timely
paid to the Participants with respect to such Note by the
beneficial purchaser thereof (or a Person, including an
indirect participant in DTC, acting on behalf of such
purchaser), such Participants and, in turn, the Presenting
Agent may enter SDFS deliver orders through DTC's Participant
Terminal System reversing the orders entered pursuant to
Settlement Procedures "G" and "H," respectively. Thereafter,
the Trustee will deliver the withdrawal message and take the
related actions described in the preceding paragraph. If such
failure shall have occurred for any reason other than a
default by the Presenting Agent in the performance of its
obligations hereunder and under the Agency Agreement, then the
Company will reimburse the Presenting Agent or the Trustee, as
applicable, on an equitable basis for the loss of the use of
the funds during the period when they were credited to the
account of the Company.
Notwithstanding the foregoing, upon any failure to settle with
respect to a Book-Entry Note, DTC may take any actions in
accordance with its SDFS operating procedures then in effect.
In the event of a failure to settle with respect to one or
more, but not all, of the Book-Entry Notes to have been
represented by a Global Security, the Trustee will provide, in
accordance with Settlement Procedure "E," for the
authentication and issuance of a Global Security representing
the other Book-Entry Notes to have been represented by such
Global Security and will make appropriate entries in its
records.
Trustee Not to
Risk Funds:
Nothing herein shall be deemed to require the Trustee to risk or
expend its own funds in connection with any payment to the
Company, DTC, the Agents or the purchaser, it being understood
by all parties that payments made by the Trustee to the
Company, DTC, the Agents or the purchaser shall be made only
to the extent that funds are provided to the Trustee for such
purpose.
Authenticity of
Signatures:
The Company will cause the Trustee to furnish to the Company and
the Agents from time to time with the specimen signatures of
each of the Trustee's officers, employees or agents who has
been authorized by the Trustee to authenticate Book-Entry
Notes, but no Agent will have any obligation or liability to
the Company or the Trustee in respect to the authenticity of
the signature of any officer, employee or agent of the Company
or the Trustee on any Book-Entry Note.
Payment of
Expenses:
Each Agent shall forward to the Company, on a monthly basis, a
statement of the out-of-pocket expenses incurred by such Agent
during that month that are reimbursable to it pursuant to the
terms of the Agency Agreement. The Company will remit payment
to the Agents currently on a monthly basis.
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Advertising
Costs:
The Company will determine with the Agents the amount of
advertising that may be appropriate in soliciting offers to
purchase the Book-Entry Notes. Advertising expenses will be
paid by the Company.
Periodic
Statements
from The Bank
of New York:
Periodically, the Trustee will send to the Company a statement setting
forth the principal amount of Book-Entry Notes Outstanding as
of that date.
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PART II
Administrative Procedures for Certificated Notes
The Trustee will serve as registrar and transfer agent in connection
with the Certificated Notes.
Issuance:
Each Certificated Note will be dated and issued as of the date of
its authentication by the Trustee. Each Certificated Note will
bear an Original Issue Date, which will be (i) with respect to
an original Certificated Note (or any portion thereof), its
original issuance date (which will be the settlement date) and
(ii) with respect to any Certificated Note (or portion
thereof) issued subsequently upon transfer or exchange of a
Certificated Note or in lieu of a destroyed, lost or stolen
Certificated Note, the Original Issue Date of the predecessor
Certificated Note, regardless of the date of authentication of
such subsequently issued Certificated Note.
Registration:
Certificated Notes will be issued only in fully registered form without
coupons.
Transfers and
Exchanges:
A Certificated Note may be presented for transfer or exchange at
the principal corporate trust office in The City of New York
of the Trustee. Certificated Notes will be exchangeable for
other Certificated Notes having identical terms but different
authorized denominations without service charge. Certificated
Notes will not be exchangeable for Book-Entry Notes.
Maturities:
Each Certificated Note will mature on a date not less than nine
months after the Settlement Date for such Note.
Denominations:
The denomination of any Certificated Note denominated in U.S.
dollars will be a minimum of $1,000 or any amount in excess
thereof that is an integral multiple of $1,000. The authorized
denominations of Certified Notes denominated in any other
currency will be specified pursuant to "Settlement Procedures"
below.
Interest:
General. Interest, if any, on each Certificated Note will accrue from
the original issue date for the first interest period or the
last date to which interest has been paid, if any, for each
subsequent interest period, and will be calculated and paid in
the manner described in such Note and in the Prospectus, as
supplemented by the applicable Pricing Supplement. Unless
otherwise specified therein, each payment of interest on a
Certificated Note will include interest accrued to but
excluding the Interest Payment Date (provided that, in the
case of Certificated Notes which reset daily or weekly,
interest payments will include accrued interest to and
including the day immediately preceding the Interest Payment
Date) or to but excluding Maturity.
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Regular Record Dates. The Regular Record Dates with respect to
any Interest Payment Date shall be the date fifteen calendar
days immediately preceding such Interest Payment Date (unless
otherwise specified pursuant to Settlement Procedure "A"
below).
Fixed Rate Certificated Notes. Unless otherwise specified
pursuant to Settlement Procedure "A" below, interest payments
on Fixed Rate Certificated Notes will be made semi-annually on
April 1 and October 1 of each year and at Maturity; provided,
however, that in the case of a Fixed Rate Certificated Note
issued between a Regular Record Date and an Interest Payment
Date, the first interest payment will be made on the Interest
Payment Date following the next succeeding Regular Record Date
to the Person in whose name such Note is registered on the
Regular Record Date for such succeeding Interest Payment Date.
Floating Rate Certificated Notes. Interest payments will be
made on Floating Rate Certificated Notes monthly, quarterly,
semi-annually or annually. Interest will be payable, in the
case of Floating Rate Certificated Notes with a monthly
Interest Payment Period, on the third Wednesday of each month;
with a quarterly Interest Payment Period, on the third
Wednesday of March, June, September and December of each year;
with a semi-annual Interest Payment Period, on the third
Wednesday of the two months specified pursuant to Settlement
Procedure "A" below; and with an annual Interest Payment
Period, on the third Wednesday of the month specified pursuant
to Settlement Procedure "A" below; provided, however, that if
an Interest Payment Date for a Floating Rate Certificated Note
would otherwise be a day that is not a Business Day with
respect to such Floating Rate Certificated Note, such Interest
Payment Date will be the next succeeding Business Day with
respect to such Floating Rate Certificated Note, except in the
case of a Floating Rate Certificated Note for which the Base
Rate is LIBOR, if such Business Day is in the next succeeding
calendar month, such Interest Payment Date will be the
immediately preceding Business Day; and provided further, that
in the case of a Floating Rate Certificated Note issued
between a Regular Record Date and an Interest Payment Date or
on an Interest Payment Date, the first interest payment will
be made on the Interest Payment Date following the next
succeeding Regular Record Date to the Person in whose name
such Note is registered on the Regular Record Date for such
succeeding Interest Payment Date.
Calculation of
Interest:
Fixed Rate Certificated Note. Interest on Fixed Rate Certificated
Notes (including interest for partial periods) will be
calculated on the basis of a 360-day year of twelve 30-day
months.
Floating Rate Certificated Notes. Interest rates on Floating
Rate Certificated Notes will be determined as set forth in the
form of Notes. Interest on Floating
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Rate Certificated Notes, except as otherwise set forth
therein, will be calculated on the basis of actual days
elapsed and a year of 360 days, except that in the case of a
Floating Rate Certificated Note for which the Base Rate is
Treasury Rate, interest will be calculated on the basis of the
actual number of days in the year.
Payments of
Principal and
Interest:
The Trustee will pay the principal amount of each Certificated
Note at Maturity upon presentation of such Certificated Note
to the Trustee (unless otherwise specified in the applicable
Pricing Supplement). Such payment, together with payment of
interest due at Maturity of such Certificated Note, will be
made in funds available for immediate use by the Trustee and
in turn by the Holder of such Certificated Note. Certificated
Notes presented to the Trustee at Maturity for payment will be
canceled by the Trustee in accordance with the Indenture. All
interest payments on a Certificated Note (other than interest
due at Maturity) will be made by check drawn on the Trustee
(or another Person appointed by the Trustee) and mailed by the
Trustee to the Person entitled thereto as provided in such
Note and the Indenture (unless otherwise specified in the
applicable Pricing Supplement).
The Trustee will be responsible for reporting interest paid on
Certificated Notes, and where applicable, withholding taxes on
such interest payments, as may be required by law.
If any Interest Payment Date for a Fixed Rate Certificated
Note or the Maturity of a Certificated Note is not a Business
Day, the payment due on such day shall be made on the next
succeeding Business Day and no interest shall accrue on such
payment for the period from and after such Interest Payment
Date or Maturity, as the case may be. If any Interest Payment
Date for a Floating Rate Certificated Note (other than the
Maturity Date) is not a Business Day, the payment due on such
day shall be made on the next succeeding Business Day and
interest shall continue to accrue to but not including such
succeeding Business Day, except that in the case of an
Interest Payment Date on a Floating Rate Certificated Note for
which the Base Rate is LIBOR, if such Business Day is in the
succeeding calendar month, such Interest Payment Date will be
the preceding Business Day.
Procedure for
Rate Setting
and Posting:
The Company and the Agents will discuss from time to time the
aggregate principal amount of, the issuance price of, and the
interest rates to be borne by, Notes that may be sold as a
result of the solicitation of orders by the Agents. If the
Company decides to set prices of, and rates borne by, any
Notes in respect of which the Agents are to solicit orders
(the setting of such
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prices and rates to be referred to herein as "posting") or if
the Company decides to change prices or rates previously
posted by it, it will promptly advise the Agents of the prices
and rates to be posted.
Acceptance and
Rejection of
Orders:
Unless otherwise instructed by the Company, each Agent will advise
the Company promptly by telephone of all orders to purchase
Certificated Notes received by such Agent, other than those
rejected by it in whole or in part in the reasonable exercise
of its discretion. Unless otherwise agreed by the Company and
the Agents, the Company has the sole right to accept orders to
purchase Certificated Notes and may reject any such orders in
whole or in part.
Preparation of
Pricing Supplement:
If any order to purchase a Certificated Note is accepted by or
on behalf of the Company, the Company will prepare a Pricing
Supplement reflecting the terms of such Certificated Note and
will arrange to have the Pricing Supplement filed with the
Commission in accordance with the applicable paragraph of Rule
424(b) under the Act and will supply ten copies thereof (and
additional copies if requested) to the Presenting Agent. The
Presenting Agent will cause a Prospectus and Pricing
Supplement to be delivered to the purchaser of such
Certificated Note.
In each instance that a Pricing Supplement is prepared, the
Presenting Agent will affix the Pricing Supplement to
Prospectuses prior to their use. Outdated Pricing Supplements
(other than those retained for files) will be destroyed.
Suspension of
Solicitation;
Amendment or
Supplement:
Subject to the Company's representations, warranties and covenants
contained in the Agency Agreement, the Company may instruct
the Agents to suspend at any time for any period of time or
permanently, the solicitation of orders to purchase
Certificated Notes. Upon receipt of such instructions, the
Agents will forthwith suspend solicitation until such time as
the Company has advised them that such solicitation may be
resumed.
In the event that at the time the Company suspends
solicitation of purchases there shall be any orders
outstanding for settlement, the Company will promptly advise
the Agents and the Trustee whether such orders may be settled
and whether copies of the Prospectus as in effect at the time
of the suspension, together with the appropriate Pricing
Supplement, may be delivered in connection with the settlement
of such orders. The Company will have the sole responsibility
for such decision and for any arrangements that may be made in
the event that the Company determines that such orders
A-22
may not be settled or that copies of such Prospectus may not
be so delivered.
If the Company decides to amend or supplement the Registration
Statement or the Prospectus, it will promptly advise the
Agents and furnish the Agents with the proposed amendment or
supplement and with such certificates and opinions as are
required, all to the extent required by and in accordance with
the terms of the Agency Agreement. Subject to the provisions
of the Agency Agreement, the Company may file with the
Commission any supplement to the Prospectus relating to the
Notes. The Company will provide the Agents and the Trustee
with copies of any such supplement, and confirm to the Agents
that such supplement has been filed with the Commission
pursuant to the applicable paragraph of Rule 424(b).
Procedure for
Rate Changes:
When the Company has determined to change the interest rates of
Certificated Notes being offered, it will promptly advise the
Agents and the Agents will forthwith suspend solicitation of
orders. The Agents will telephone the Company with
recommendations as to the changed interest rates. At such time
as the Company has advised the Agents of the new interest
rates, the Agents may resume solicitation of orders. Until
such time only "indications of interest" may be recorded.
Within two Business Days after any sale of Notes, the Company
will file with the Commission a Pricing Supplement to the
Prospectus relating to such Notes that reflects the applicable
interest rates and other terms and will deliver copies of such
Pricing Supplement to the Agents.
Delivery of
Prospectus:
A copy of the Prospectus and, where applicable, a Pricing Supplement,
relating to a Certificated Note, must accompany or precede the
earliest of any written offer by any Agent of such
Certificated Note, confirmation of the purchase of such
Certificated Note, or payment for such Certificated Note by
its purchaser. If notice of a change in the terms of the
Certificated Notes is received by the Agents between the time
an order for a Certificated Note is placed and the time
written confirmation thereof is sent by the Presenting Agent
to a customer or his agent, such confirmation shall be
accompanied by a Prospectus and Pricing Supplement setting
forth the terms in effect when the order was placed. Subject
to "Suspension of Solicitation; Amendment or Supplement"
above, the Presenting Agent timely will deliver a Prospectus
and Pricing Supplement as herein described with respect to
each Certificated Note sold by it. The Company will make such
delivery if such Certificated Note is sold directly by the
Company to a purchaser (other than any Agent).
Confirmation:
For each order to purchase a Certificated Note solicited by any
Agent and accepted by or on behalf of the Company, the
Presenting Agent will issue a confirmation to the
A-23
purchaser, with a copy to the Company, setting forth the
details set forth above and delivery and payment instructions.
Settlement:
The receipt by the Company of immediately available funds in
exchange for an authenticated Certificated Note delivered to
the Presenting Agent and the Presenting Agent's delivery of
such Certificated Note against receipt of immediately
available funds shall, with respect to such Certificated Note,
constitute "settlement." All orders accepted by the Company
will be settled on the fifth Business Day following the date
of sale pursuant to the timetable for settlement set forth
below, unless the Company, the Trustee and the purchaser agree
to settlement on another day which shall be no earlier than
the next Business Day following the date of sale; provided,
however, that the Trustee shall not, without its prior written
consent, be required to deliver in excess of 300 certificates
evidencing Certificated Notes in any one of the three business
days following the date of sale.
Settlement
Procedures:
Settlement Procedures with regard to each Certificated Note sold by the
Company through any Agent, as agent, shall be as follows:
A. The Presenting Agent will advise the Company by
telephone of the following settlement information:
1. Name in which such Certificated Note is to
be registered ("Registered Owner").
2. Address of the Registered Owner and address
for payment of principal and interest.
3. Taxpayer identification number of the
Registered Owner (if available).
4. Principal amount.
5. Maturity Date.
6. In the case of a Fixed Rate Certificated
Note, the interest rate or, in the case of a
Floating Rate Certificated Note, the initial
interest rate (if known at such time), Base
Rate, Index Maturity, Interest Reset Period,
Interest Reset Dates, Spread or Spread
Multiplier (if any), minimum interest rate
(if any), maximum interest rate (if any)
and, in the case of a Floating Rate
certified Note for which the Base Rate is
LIBOR, whether LIBOR Reuters, LIBOR Telerate
or another LIBOR reference is applicable to
the Notes and the Designated LIBOR Currency.
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7. Interest Payment Dates, Regular Record Dates
(if other than the dates fifteen calendar
days preceding such Interest Payment Dates),
the Interest Payment Period, the Calculation
Dates and the Calculation Agent.
8. Redemption provisions, if any.
9. Settlement date.
10. Price (including currency).
11. Presenting Agent's commission, determined as
provided in Section 2 of the Agency
Agreement.
12. Manner of payment at Maturity (if other than
upon presentation of Notes to the Trustee)
and Interest (if other than by check).
B. The Company will advise the Trustee by telephone
(confirmed in writing at any time on the sale date)
or electronic transmission of the information set
forth in Settlement Procedure "A" above and the name
of the Presenting Agent. Each such communication by
the Company shall constitute a representation and
warranty by the Company to the Trustee and the Agents
that (i) such Certificated Note is then, and at the
time of issuance and sale thereof will be, duly
authorized for issuance and sale by the Company, (ii)
such Certificated Note will conform with the terms of
the Indenture, and (iii) after giving effect to the
issuance of such Certificated Note and any other
Securities (as defined in the Agency Agreement) to be
issued on or prior to the settlement date for the
sale of such Certificated Note, the aggregate amount
of Securities which have been issued and sold by the
Company will not exceed the amount of Securities
registered under the Registration Statement (as
defined in the Agency Agreement).
C. The Company will deliver to the Trustee a pre-printed
four-ply packet for such Certificated Note, which
packet will contain the following documents in forms
that have been approved by the Company, the Agents
and the Trustee:
1. Certificated Note with customer
confirmation.
2. Stub One - For Trustee.
3. Stub Two - For Agent.
4. Stub Three - For the Company.
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D. The Trustee will complete such Certificated Note and
will authenticate such Certificated Note and deliver
it (with the confirmation) and Stubs One and Two to
the Presenting Agent, and the Presenting Agent will
acknowledge receipt of the Note by stamping or
otherwise marking Stub One and returning it to the
Trustee. Such delivery will be made only against such
acknowledgment of receipt and evidence that
instructions have been given by the Presenting Agent
for payment to the account of the Company at The Bank
of New York in funds available for immediate use, of
an amount equal to the price of such Certificated
Note less the Presenting Agent's commission. In the
event that the instructions given by the Presenting
Agent for payment to the account of the Company are
revoked, the Company will as promptly as possible
wire transfer to the account of the Presenting Agent
an amount of immediately available funds equal to the
amount of such payment made.
E. The Presenting Agent will deliver such Certificated
Note (with the confirmation) to the customer or the
customer's trust bank against payment in immediately
payable funds. The Presenting Agent will obtain the
acknowledgement of receipt of such Certificated Note
by retaining Stub Two.
F. The Trustee will send Stub Three to the Company by
first-class mail.
Settlement
Procedures
Timetable:
For orders of Certificated Notes solicited by any Agent,
as agent, and accepted by the Company, Settlement
Procedures "A" through "F" set forth above shall be
completed on or before the respective times (New York
City time) set forth below:
Settlement
Procedure Time
A 2:00 P.M. on the Business Day
before settlement
B-C 3:00 P.M. on the Business Day
before settlement
D 2:15 P.M. on Settlement Date
E 3:00 P.M. on Settlement Date
F 5:00 P.M. on Settlement Date
Failure to Settle:
If a purchaser fails to accept delivery of and make
payment for any Certificated Note, the Presenting
Agent will notify the Company and the Trustee by
telephone and return such Certificated Note to the
Trustee. Upon receipt of such notice, the Company
will immediately wire transfer to the account of the
Presenting Agent an amount equal to the amount
previously credited to the account of Company in
respect of such Certificated Note. Such wire transfer
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will be made on the Settlement Date, if possible, and
in any event not later than the Business Day
following the Settlement Date. If the failure shall
have occurred for any reason other than a default by
the Presenting Agent in the performance of its
obligations hereunder and under the Agency Agreement,
then the Company will reimburse the Presenting Agent
or the Trustee, as appropriate, on an equitable basis
for its loss of the use of the funds during the
period when they were credited to the account of the
Company. Immediately upon receipt of the Certificated
Note in respect of which such failure occurred, the
Trustee will cancel such Certificated Note in
accordance with the Indenture and so advise the
Company, and will make appropriate entries in its
records.
Trustee Not to
Risk Funds:
Nothing herein shall be deemed to require the Trustee to risk
or expend its own funds in connection with any
payment to the Company, the Agents or the purchaser,
it being understood by all parties that payments made
by the Trustee to the Company, the Agents or the
purchaser shall be made only to the extent that funds
are provided to the Trustee for such purpose.
Authenticity of
Signatures:
The Company will cause the Trustee to furnish to the
Agents from time to time with the specimen signatures
of each of the Trustee's officers, employees or
agents who has been authorized by the Trustee to
authenticate Certificated Notes, but neither the
Trustee nor any Agent will have any obligation or
liability to the Company or the Trustee in respect of
the authenticity of the signature of any officer,
employee or agent of the Company or the Trustee on
any Certificated Note.
Payment of
Expenses:
Each Agent shall forward to the Company, on a monthly
basis, a statement of the out-of-pocket expenses
incurred by such Agent during that month that are
reimbursable to it pursuant to the terms of the
Agency Agreement. The Company will remit payment to
the Agents currently on a monthly basis.
Advertising
Costs:
The Company will determine with the Agents the amount of
advertising that may be appropriate in soliciting
orders to purchase the Certificated Notes.
Advertising expenses will be paid by the Company.
Periodic
Statements
from The Bank
of New York:
Periodically, the Trustee will send to the Company a statement
setting forth the principal amount of Certificated
Notes outstanding as of that date.
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EXHIBIT B
SCANA
CORPORATION
Medium-Term Notes
Due Nine Months or More
from Date of Issue
TERMS AGREEMENT
,
Attention:
Subject in all respects to the terms and conditions of the Selling
Agency Agreement (the "Agreement") dated January 23, 2002, among UBS Warburg
LLC, Credit Suisse First Boston Corporation, Banc of America Securities LLC and
First Union Securities, Inc. and you, the undersigned agrees to purchase the
following Notes of:
Aggregate Principal Amount:
Interest Rate:
Date of Maturity:
If Fixed Rate Notes -
Interest Rate:
Interest Payment Period:
Interest Payment Dates:
Regular Record Dates:
If Floating Rate Notes -
Initial Interest Rate:
Base Rate: Index Maturity:
Spread: Spread Multiplier:
Minimum Interest Rate, if any:
Maximum Interest Rate, if any:
Interest Reset Period:
Interest Reset Dates:
Interest Payment Period:
Interest Payment Dates:
Regular Record Dates:
[Redemption Dates and Prices:]
[Repayment Dates and Prices:]
Purchase Price: ___________% of Principal Amount [plus accrued
interest from _______________, ______]
Purchase Date and Time:
Place for Delivery of Notes
and Payment Therefor:
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Method of Payment:
Modification, if any, in the
requirements to deliver the
documents specified in
Section 6(b) of the Agreement:
Period during which additional
Notes may not be sold pursuant
to Section 4(m) of the Agreement:
[Purchaser]
By: _______________________________
Accepted:
By: ____________________________
Title: _______________________
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SCHEDULE I
The Company agrees to pay each Agent a commission equal to the
following percentage of the principal amount of each Note sold by such Agent:
Maturity Range of Notes amount Percentage of Principal
From 9 months to less than 1 year .125%
From 1 year to less than 18 months .150%
From 18 months to less than 2 years .200%
From 2 years to less than 3 years .250%
From 3 years to less than 4 years .350%
From 4 years to less than 5 years .450%
From 5 years to less than 6 years .500%
From 6 years to less than 7 years .550%
From 7 years to less than 10 years .600%
From 10 years to less than 15 years .625%
From 15 years to less than 20 years .700%
From 20 years up to and including 30 years .750%
Address for Notice to you:
Notices to UBS Warburg LLC shall be directed to it at 677 Washington
Boulevard, Stamford, Connecticut 06901, Attention: Debt Capital Markets Group.
Notices to Credit Suisse First Boston Corporation shall be directed to
it at Eleven Madison Avenue, New York, New York 10010, Attention: Short and
Medium Term Products Group.
Notices to Banc of America Securities LLC shall be directed to it at
Bank of America Corporate Center, 100 North Tryon Street; NC1-007-07-01,
Charlotte, North Carolina 28255.
Notices to First Union Securities, Inc. shall be directed to it at One
First Union Center, 301 South College Street, TW8, NC0604, Charlotte, North
Carolina 28288, Attn: Jim Williams.
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