SCANA Corporation $__________ Medium-Term Notes Due Nine Months or More From Date of Issue Selling Agency Agreement
SCANA
Corporation
$__________
Medium-Term Notes
Due Nine
Months or More
From Date
of Issue
_________,
_____
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
_________, _____ (the "Agreement"), with respect to the issue and sale by the
Company of up to $__________ 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 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") a registration statement on such Form (File
Number: 333-__________), which registration statement has become effective, for
the registration under the Act of $__________ aggregate principal amount of
securities (the "Securities"), including the Notes. Such registration statement,
as amended at the date of this Agreement, meets the requirements set forth in
Rule 415(a)(1)(ix) or (x) under the Act and complies 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, 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][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 the Registration Statement
and any subsequent post-effective amendment or amendments to the Registration
Statement became or become effective in accordance with Rule 158(c) under the
Act. "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
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 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.
(p) There is
and has been no failure on the part of the Company or any of the Company's
directors or officers, in their capacities as such, to comply in all material
respects with any provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules and
regulations promulgated in connection therewith (the "▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act"),
including Section 404 thereof related to internal controls and the attestation
requirements thereof and Sections 302 and 906 thereof related to
certifications.
(q) The
accountants who reported upon the audited financial statements included or
incorporated by reference in the Prospectus are independent accountants as
required by the Act and the rules and regulations promulgated by the Commission
thereunder.
(r) The
financial statements of the Company and its subsidiaries included or
incorporated by reference in the Prospectus present fairly the financial
position of the Company and its subsidiaries as of the dates indicated and the
results of their operations for the periods specified; except as stated therein,
said financial statements have been prepared in conformity with generally
accepted accounting principles in the United States applied on a consistent
basis (except that financial statements with respect to any interim periods
after the end of the latest fiscal year for which audited financial statements
are included or incorporated by reference therein have fewer footnotes and are
subject to normal year-end adjustments).
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 shall not be required to comply with Section 4(j),
(k) or (l) with respect to amendments and supplements to the Registration
Statement or Prospectus during any period in which the Company has instructed
the Agents to suspend the solicitation of offers to purchase Notes. However, if
during the period of suspension the Company has amended or supplemented the
Registration Statement or Prospectus in a manner which would have required the
Company to deliver a certificate pursuant to Section 4(j), written opinions of
counsel (or other letters) pursuant to Section 4(k) and a letter of the
Company's independent public accountants pursuant to Section 4(l), then as a
condition to any Agent resuming such solicitation, the Company shall deliver to
each of the Agents the following, each dated on a date on or after the date on
which the Company requests the Agents to resume such solicitation:
(i) a
certificate of the Company meeting the requirements of Section 4(j) 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 date of the most recent amendment
or supplement for which a certificate of the Company would have been required by
Section 4(j) had the Agents not suspended the solicitation of
offers,
(ii)
written opinions of counsel (or other letters) meeting the requirements of
Section 4(k) modified to relate to the Registration Statement and the Prospectus
existing at the date of the most recent amendment or supplement for which
opinions of counsel (or other letters) would have been required by Section 4(k)
had the Agents not suspended the solicitation of offers, and
(iii) a
letter of the Company's independent public accountants meeting the requirements
of Section 4(l) with such changes as may be necessary to reflect the amended and
supplemented financial information included or incorporated by reference in the
Registration Statement and the Prospectus as amended or supplemented to the date
of such letter.
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.
(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 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 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 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 filing with the Commission: (1) an amendment or supplement
relating to any offering of Securities other than the Notes, (2) a supplement
relating to any offering of 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, (3) an amendment or supplement setting forth
financial statements of benefit plans of the Company, (4) a Current Report on
Form 8-K (or any successor item thereto) or (5) any other amendment or
supplement as to which each of you has given notice to us that you deem it
immaterial), 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 with the Commission of
such supplement or document, as the case may be, 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 filing with the Commission: (1) an amendment or supplement
relating to any offering of Securities other than the Notes, (2) a supplement
relating to any offering of 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, (3) a Current Report on Form 8-K (or any successor
item thereto), (4) an amendment or supplement setting forth financial statements
of benefit plans of the Company or (5) any other amendment or supplement as to
which each of you has given notice to us that you deem it immaterial), 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 with the
Commission of such supplement or document, as the case may be, 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 by filing
with the Commission: (1) an amendment or supplement relating to any offering of
Securities other than the Notes, (2) a supplement relating to any offering of
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, (3) a Current Report on Form 8-K (or any successor item thereto), (4) an
amendment or supplement relating to financial statements of benefit plans of the
Company or (5) any other amendment or supplement as to which each of you has
given notice to us that you deem it immaterial), the Company shall cause its
independent public accountants promptly to furnish to each of you a letter,
dated within two business days of the date of the effectiveness of such
amendment or the date of the filing of such supplement or document, as the case
may be, 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 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 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 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 April 15, 2006,] 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, 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 ▇▇▇▇▇▇ 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
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 April 15, 2006,] 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 ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Richmond, Virginia, counsel for
the Agents, such opinion or opinions, dated the Execution Time, with respect to
the issuance and sale of the Notes, 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 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 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 ▇▇▇▇▇▇ Law Firm, P.A., counsel for the Company, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, 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:
(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 ▇▇▇▇▇▇ 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
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, 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 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 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 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; No Fiduciary Duty.
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. The Company
acknowledges and agrees that in connection with all aspects of each transaction
contemplated by this Agreement, the Company an the Agents have an arm's-length
business relationship that creates no fiduciary duty on the part of any party
and each expressly disclaims any fiduciary relationship.
11.
Notices.
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 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, 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.
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:
Its:
The
foregoing Agreement is hereby
confirmed
and accepted as of the date hereof.
By:
Its:
By:
Its:
By:
Its:
By:
Its:
EXHIBIT
A
SCANA
CORPORATION
Medium-Term
Note Administrative Procedures
_________,
_____
The
Medium-Term Notes, Due from Nine Months or More from Date of Issue in an
aggregate principal amount of $__________ (the "Notes") of SCANA Corporation
(the "Company") are to be offered on a continuing basis. _______________,
___________, _____________ and ______________, 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 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
▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇
Columbia,
South Carolina 29201
Attention:
General Counsel
If to
_____________:
_______________________
_______________________
_______________________
Attention:
______________
If to
_____________:
_______________________
_______________________
_______________________
Attention:
______________
If to
_____________:
_______________________
_______________________
_______________________
Attention:
______________
If to
_____________:
_______________________
_______________________
_______________________
Attention:
______________
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 ▇▇▇▇▇▇-▇▇▇▇
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 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 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 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 (other than a Maturity Date) for a Floating Rate Book-Entry
Note would 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 and interest shall continue to accrue to but not including such
succeeding Business Day, 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, 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 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.
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
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.
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 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 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
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.
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. |
|
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.
|
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.
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 (other than
a Maturity 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 and
interest shall continue to accrue to but not including such succeeding
Business Day, 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 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 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 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 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.
|
|
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. |
|
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 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.
|
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 _________, _____, among _____________, _____________,
____________ and ______________ 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:
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:
_______________________
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 _______________ shall be directed to it at __________________,
______________,
Attention:
__________________.
Notices
to _______________ shall be directed to it at __________________,
______________,
Attention:
__________________.
Notices
to _______________ shall be directed to it at __________________,
______________,
Attention:
__________________.
Notices
to _______________ shall be directed to it at __________________,
______________,
Attention:
__________________.