Exhibit 1.01
SCANA Corporation
$1,000,000,000 Medium-Term Notes
Due From Nine Months to Thirty Years
From Date of Issue
UBS Warburg LLC
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000
Credit Suisse First Boston Corporation
Xxxxxx Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Banc of America Securities LLC
Bank of America Corporate Center
000 Xxxxx Xxxxx Xxxxxx; XX0-000-00-00
Xxxxxxxxx, XX 00000
Selling Agency Agreement
, 2000
New York, New York
Dear Sirs:
SCANA Corporation, a South Carolina corporation (the "Company"), confirms
its agreement with each of you as evidenced by this Selling Agency Agreement
dated , 2000 (the "Agreement"), with respect to the issue and sale by the
Company of up to $1,000,000,000 aggregate principal amount of its Medium-Term
Notes, Due from Nine Months to Thirty Years 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 acting
solely in the capacity as agent for the Company pursuant to Section 2(a) and not
as principal (collectively, the "Agents"), the term the "Purchaser" shall refer
to one of you 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- ), including a prospectus (the "Prospectus"),
which registration statement has become effective, for the registration under
the Act of $1,000,000,000 aggregate principal amount of debt 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 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).
(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 obtained for the period ending February 11, 2003, all
approvals required to be obtained from governmental and regulatory authorities
in connection with the issuance and sale of the Notes have been obtained and are
in full force and effect.
(i) The terms which follow, when used in this Agreement, shall
have the meanings indicated. The term "Effective Date" shall mean the date that
Registration Statement No. 333- and any subsequent post-effective amendment or
amendments to the Registration Statement became or become effective. "Execution
Time" shall mean the date and time that this Agreement is executed and delivered
by the parties hereto. "Prospectus" shall mean the form of basic prospectus
relating to the Securities contained in the Registration Statement at the
Effective Date. "Registration Statement" shall mean the registration statement
referred to in paragraph (a) above, including incorporated documents, exhibits
and financial statements, as amended at the 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).
2. Appointment of Agents; Solicitation by the Agents of Offers
to Purchase; Sales of Notes to a Purchaser.
(a) Subject to the terms and conditions set forth herein, the
Company hereby authorizes each of the Agents to act as its agent to solicit
offers for the purchase of all or part of the Notes from the Company.
On the basis of the representations and warranties, and subject to the
terms and conditions set forth herein, each of the Agents agrees, as agent of
the Company, to use its reasonable efforts to solicit offers to purchase the
Notes from the Company upon the terms and conditions set forth in the Prospectus
(and any supplement thereto) and in the Procedures. Each Agent shall make
reasonable efforts to assist the Company in obtaining performance by each
purchaser whose offer to purchase Notes has been solicited by such Agent and
accepted by the Company, but such Agent shall not, except as otherwise provided
in this Agreement, have any liability to the Company in the event any such
purchase is not consummated for any reason. Except as provided in Section 2(b),
under no circumstances will any Agent be obligated to purchase any Notes for its
own account. It is understood and agreed, however, that any Agent may purchase
Notes as principal pursuant to Section 2(b).
The Company reserves the right, in its sole discretion, to instruct the
Agents to suspend at any time, for any period of time or permanently, the
solicitation of offers to purchase the Notes. Upon receipt of instructions from
the Company, the Agents will forthwith suspend solicitation of offers to
purchase Notes from the Company until such time as the Company has advised them
that such solicitation may be resumed.
The Company agrees to pay each Agent a commission, on the Closing Date
with respect to each sale of Notes by the Company as a result of a solicitation
made by such Agent, in an amount equal to that percentage specified in Schedule
I hereto of the aggregate principal amount of the Notes sold by the Company.
Such commission shall be payable as specified in the Procedures.
Subject to the provisions of this Section and the Procedures, offers
for the purchase of Notes may be solicited by an Agent, as agent for the
Company, at such time and in such amounts as such Agent deems advisable. The
Company may from time to time offer Notes for sale otherwise than through an
Agent.
If the Company shall default in its obligations to deliver Notes to a
purchaser whose offer it has accepted, the Company shall indemnify and hold each
of you harmless against any loss, claim or damage arising from or as a result to
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 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 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 Agent 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.
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 (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). 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, subject to the first sentence of paragraph (a) of this Section
4, 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 (iii) pay the
reasonable fees and expenses of your counsel incurred in connection with this
Agreement.
(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, of any other Notes to
be issued on or prior to such settlement date and of any other Securities to be
issued and sold by the Company on or prior to such settlement date, the
aggregate amount of Securities (including any Notes) which have been issued and
sold by the Company will not exceed the amount of Securities registered pursuant
to the Registration Statement.
(j) Each time that the Registration Statement or the
Prospectus is amended or supplemented (other than by an amendment or supplement
relating to any offering of Securities other than the Notes or providing solely
for the specification of or a change in the maturity dates, the interest rates,
the issuance prices or other similar terms of any Notes sold pursuant hereto),
the Company will deliver or cause to be delivered promptly to each of you a
certificate of the Company, signed by the Chairman of the Board or the President
and the principal financial or accounting officer of the Company, dated the date
of the effectiveness of such amendment or the date of the filing of such
supplement, in form reasonably satisfactory to you, of the same tenor as the
certificate referred to in Section 5(e) but modified to relate to the last day
of the fiscal quarter for which financial statements of the Company were last
filed with the Commission and to the Registration Statement and the Prospectus
as amended and supplemented to the time of the effectiveness of such amendment
or the filing of such supplement.
(k) Each time that the Registration Statement or the
Prospectus is amended or supplemented (other than by an amendment or supplement
(i) relating to any offering of Securities other than the Notes, (ii) providing
solely for the specification of or a change in the maturity dates, the interest
rates, the issuance prices or other similar terms of any Notes sold pursuant
hereto or (iii) setting forth or incorporating by reference financial statements
or other information as of and for a fiscal quarter, unless, in the case of
clause (iii) above, in the reasonable judgment of any of you, such financial
statements or other information are of such a nature that an opinion of counsel
should be furnished), the Company shall furnish or cause to be furnished
promptly to each of you written opinions of counsel to the Company satisfactory
to each of you, dated the date of the effectiveness of such amendment or the
date of the filing of such supplement, in form satisfactory to each of you, of
the same tenor as the opinions referred to in Sections 5(b) and 5(c) but
modified to relate to the Registration Statement and the Prospectus as amended
and supplemented to 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 as amended and supplemented to 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, the Company shall cause its independent public
accountants promptly to furnish to each of you a letter, dated the date of the
effectiveness of such amendment or the date of the filing of such supplement, in
form satisfactory to each of you, of the same tenor as the letter referred to in
Section 5(f) with such changes as may be necessary to reflect the amended and
supplemental financial 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 one of the Associate General Counsel for the Company
designated by its General Counsel, 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 which,
however, do not make the remedies afforded inadequate for the
practical realization of the benefits afforded by the
Indenture);
(v) the Company is a public utility holding company
within the meaning of the PUHC Act and is registered as such
under such Act; and the Company is not subject to registration
under the Investment Company Act;
(vi) except for such approvals as may be required
under the PUHC Act, which have been obtained for the period
ending February 11, 2003, all approvals required to be
obtained from governmental and regulatory authorities in
connection with the issuance and sale of the Notes have been
obtained and are in full force and effect;
(vii) 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;
(viii) 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 and the Prospectus (except that no
opinion need be expressed as to the financial statements and
other financial and statistical information contained therein
or the Trustee's Statement of Eligibility on Form T-1) comply
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 Execution Time
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 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);
(ix) this Agreement has been duly authorized,
executed and delivered by the Company;
(x) except for such approvals as may be required
under the PUHC Act, which have been obtained for the period
ending February 11, 2003, no consent, approval, authorization
or order of any court or governmental agency or body is
required for the consummation of the transactions contemplated
herein except such as have been obtained under the Act and
such as may be required under the blue sky laws of any
jurisdiction in connection with the sale of the Notes as
contemplated by this Agreement and such other approvals
(specified in such opinion) as have been obtained;
(xi) neither the execution and delivery of 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; and
(xii) no holders of securities of the Company have
rights to the registration of such securities under the
Registration Statement.
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.
(c) The Company shall have furnished to each Agent the opinion
of XxXxxx 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 effecting 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 and the Prospectus (except that no opinion need be expressed
as to the financial statements and other financial and statistical
information contained therein or the Trustee's Statement of
Eligibility on Form T-1) comply 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 Execution Time
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 includes
any untrue statement of a material fact or omits to state a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading (except that
no opinion need be expressed as to the financial statements and other
financial and statistical information contained or incorporated by
reference therein or to any information relating to the book-entry
system of payments and transfers of the Notes or the depository
therefor set forth under the caption "Book Entry System" in the
Prospectus or as to the Trustee's Statement of Eligibility on Form
T-1);
(v) the Company is a public utility holding company within the
meaning of the PUHC Act and is registered as such under such
Act; and the Company is not subject to registration under the
Investment Company Act;
(vi) except for such approvals as may be required under the PUHC
Act, which have been obtained for the period ending February
11, 2003, all approvals required to be obtained from
governmental and regulatory authorities in connection with the
issuance and sale of the Notes have been obtained and are in
full force and effect;
(vii) this Agreement has been duly authorized, executed and delivered by the
Company; and
(viii) neither the execution and delivery of 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.
(d) Each Agent shall have received from Xxxxxx Xxxx & Priest
LLP, New York, New York, counsel for the Agents, such opinion or opinions, dated
the Execution Time, with respect to the issuance and sale of the Notes, 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 the Chairman of the Board or the President
and the principal financial or accounting officer 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 XxXxxx Law Firm, P.A., counsel for the Company, 0000
Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxx, Xxxxx Xxxxxxxx 00000, 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 an
Associate General Counsel for the Company designated by the General Counsel,
dated as of the Closing Date, to the effect set forth in Section 5(b), (iii) the
opinion of XxXxxx 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
Xxxxxx Xxxx & Priest LLP, counsel for the Purchaser, dated as of the Closing
Date, to the effect set forth in Section 5(d), and (v) a letter of Deloitte &
Touche LLP, independent accountants for the Company, dated as of the Closing
Date, to the effect set forth in Section 5(f).
(c) Prior to the Closing Date, the Company shall have
furnished to the Purchaser such further information, certificates and documents
as the Purchaser may reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement
and any Terms Agreement, or if any of the opinions and certificates mentioned
above or elsewhere in this Agreement or such Terms Agreement shall not be in all
material respects reasonably satisfactory in form and substance to the Purchaser
and its counsel, such Terms Agreement and all obligations of the Purchaser
thereunder and with respect to the Notes subject thereto may be canceled at, or
at any time prior to, the respective Closing Date by the Purchaser. Notice of
such cancellation shall be given to the Company in writing or by telephone or
telegraph confirmed in writing.
7. Right of Person Who Agreed to Purchase to Refuse to Purchase.
(a) The Company agrees that any person who has agreed to
purchase and pay for any Note, including a Purchaser and any person who
purchases pursuant to a solicitation by any of the Agents, shall have the right
to refuse to purchase such Note if, at the Closing Date therefor, any condition
set forth in Section 5 or 6, as applicable, shall not be satisfied in all
material respects.
(b) The Company agrees that any person who has agreed to
purchase and pay for any Note pursuant to a solicitation by any of the Agents
shall have the right to refuse to purchase such Note if, subsequent to the
agreement to purchase such Note, any change, condition or development specified
in any of the Sections 9 (b) (i) through (v) shall have occurred (without regard
to any judgment of a Purchaser required therein) the effect of which is, in the
judgment of the Agent which presented the offer to purchase such Note, so
material and adverse as to make it impractical or inadvisable to proceed with
the delivery of such Note (it being understood that under no circumstance shall
any such Agent have any duty or obligation to exercise the judgment permitted to
be exercised under this Section 7(b) and Section 9(b)).
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each of
you, the directors, officers, employees and agents of each of you and each
person who controls each of you within the meaning of either the Act or the
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 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 and
fourth paragraphs 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 first business day following the receipt of such notice by the party to whom
such notice is given.
(b) Each Terms Agreement (whether oral or written) shall be
subject to termination in the absolute discretion of the Purchaser, by notice
given to the Company prior to delivery of any payment for any Note to be
purchased thereunder, if prior to such time (i) there shall have occurred,
subsequent to the agreement to purchase such Note, any change, or any
development involving a prospective change, in or affecting the business or
properties of the Company and its subsidiaries the effect of which is, in the
judgment of the Purchaser, so material and adverse as to make it impractical or
inadvisable to proceed with the delivery of such Note, (ii) there shall have
been, subsequent to the agreement to purchase such Note, any decrease in the
rating of any of the Company's debt securities by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule 436(g) under
the Act) or any notice given of any intended or potential decrease in any such
rating or of a possible change in any such rating that does not indicate the
direction of the possible change, (iii) trading in the Company's Common Stock
shall have been suspended by the Commission or the New York Stock Exchange or
trading in securities generally on the New York Stock Exchange shall have been
suspended or limited or minimum prices shall have been established on such
Exchange, (iv) a banking moratorium shall have been declared either by federal
or New York state authorities, or (v) there shall have occurred any outbreak or
escalation of hostilities, declaration by the United States of a national
emergency or war or other calamity or crisis the effect of which on financial
markets is such as to make it, in the judgment of the Purchaser, impracticable
or inadvisable to proceed with the offering or delivery of such Notes as
contemplated by the Prospectus (exclusive of any supplement thereto.)
10. Representations and Indemnities to Survive.
The respective agreements, representations, warranties, indemnities and
other statements of the Company or its officers and of you set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation made by or on behalf of you or the Company or any of the
officers, directors or controlling persons referred to in Section 8 hereof, and
will survive delivery of and payment for the Notes. The provisions of the fourth
and sixth paragraphs of Section 2(a) and of Sections 4(h) and 8 hereof shall
survive the termination or cancellation of this Agreement. The provisions of
this Agreement (including without limitation Section 7 hereof) applicable to any
purchase of a Note for which an agreement to purchase exists prior to the
termination hereof shall survive any termination of this Agreement.
11. Notices.
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 0000 Xxxx Xxxxxx, Xxxxxxxx, Xxxxx Xxxxxxxx 00000, 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.
UBS Warburg LLC
By:
Its:
Credit Suisse First Boston Corporation
By:
Its:
Banc of America Securities LLC
By:
Its:
A-28
EXHIBIT A
SCANA
CORPORATION
Medium-Term Note Administrative Procedures
, 2000
The Medium-Term Notes, Due from Nine Months to Thirty Years
from Date of Issue in an aggregate principal amount of $1,000,000,000 (the
"Notes") of SCANA Corporation (the "Company") are to be offered on a continuing
basis. UBS Warburg LLC, Credit Suisse First Boston Corporation and Banc of
America Securities LLC, 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
0000 Xxxx Xxxxxx
Xxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Secretary
If to UBS Warburg LLC:
UBS Warburg LLC
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000
If to Credit Suisse First Boston Corporation:
Credit Suisse First Boston Corporation
Xxxxxx Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Short and Medium Term Products Group
If to Banc of America Securities LLC:
Banc of America Securities LLC
Bank of America Corporate Center
000 Xxxxx Xxxxx Xxxxxx, XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
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, its Designated LIBOR Page and
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 of Standard & Poor's ------------- Corporation (the "CUSIP
Service Bureau") 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 nor more than thirty years 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
Regular Record Date immediately preceding the Interest Payment
Date) or to but excluding Maturity (other than a Maturity of a
Fixed Rate Book-Entry Note occurring on the thirty-first day of a
month, in which case such payment of interest will include
interest accrued to but excluding the thirtieth day of such
month). 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 Corporation 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
Corporation.
Regular Record Dates. The Regular Record
Date with respect to any Interest Payment
Date shall be the date fifteen calendar days
immediately preceding such Interest Payment
Date (unless otherwise specified pursuant to
Settlement Procedure "A" below).
Interest Payment Dates on Fixed Rate
Book-Entry Notes. Unless otherwise specified
pursuant to Settlement Procedure "A" below,
interest payments on Fixed Rate Book-Entry
Notes will be made semi-annually on April 1,
and October 1 of each year and at Maturity;
provided, however, that in the case of a
Fixed Rate Book-Entry Note issued between a
Regular Record Date and an Interest Payment
Date, the first interest payment will be
made on the Interest Payment Date following
the next succeeding Regular Record Date to
the Person in whose name such Note is
registered on the Regular Record Date for
such succeeding Interest Payment Date.
Interest Payment Dates on Floating Rate
Book-Entry Notes. Interest payments will be
made on Floating Rate Book-Entry Notes
monthly, quarterly, semi-annually or
annually. Unless otherwise agreed upon,
interest will be payable, in the case of
Floating Rate Book-Entry Notes with a
monthly Interest Payment Period, on the
third Wednesday of each month; with a
quarterly Interest Payment Period, on the
third Wednesday of March, June, September
and December of each year; with a
semi-annual Interest Payment Period on the
third Wednesday of the two months specified
pursuant to Settlement Procedure "A" below;
and with an annual Interest Payment Period,
on the third Wednesday of the month
specified pursuant to Settlement Procedure
"A" below; provided, however, that if an
Interest Payment Date for a Floating Rate
Book-Entry Note would otherwise be a day
that is not a Business Day with respect to
such Floating Rate Book-Entry Note, such
Interest Payment Date will be the next
succeeding Business Day with respect to such
Floating Rate Book-Entry Note, except in the
case of a Floating Rate Book-Entry Note for
which the Base Rate is LIBOR, if such
Business Day is in the next succeeding
calendar month, such Interest Payment Date
will be the immediately preceding Business
Day; and provided further, that in the case
of a Floating Rate Book-Entry Note issued
between a Regular Record Date and an
Interest Payment Date, 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, as Calculation Agent, will notify Standard & Poor's
Corporation 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 Corporation. 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 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, 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, the Designated LIBOR Page and 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). Such confirmation shall constitute a
Company Order to the Trustee for the authentication of such
Global Security and shall be deemed to satisfy the
requirements for the delivery of the Board Resolution and
Officers' Certificates set forth in the third paragraph of
Section 303 of the Indenture.
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 Corporation) 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 12:00 Noon 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, 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 nor more than thirty years 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
Regular Record Date immediately preceding the Interest Payment
Date) or to but excluding Maturity (other than a Maturity of a
Fixed Rate Certificated Note occurring on the thirty-first day of
a month, in which case such payment of interest will include
interest accrued to but excluding the thirtieth day of such
month).
Regular Record Dates. The Regular Record Dates with respect
to any Interest Payment Date shall be the date fifteen calendar
days immediately preceding such Interest Payment Date (unless
otherwise specified pursuant to Settlement Procedure "A" below).
Fixed Rate Certificated Notes. Unless otherwise specified
pursuant to Settlement Procedure "A" below, interest payments on
Fixed Rate Certificated Notes will be made semi-annually on April
1 and October 1 of each year and at Maturity; provided, however,
that in the case of a Fixed Rate Certificated Note issued between
a Regular Record Date and an Interest Payment Date, the first
interest payment will be made on the Interest Payment Date
following the next succeeding Regular Record Date to the Person
in whose name such Note is registered on the Regular Record Date
for such succeeding Interest Payment Date.
Floating Rate Certificated Notes. Interest payments will be
made on Floating Rate Certificated Notes monthly, quarterly,
semi-annually or annually. Interest will be payable, in the case
of Floating Rate Certificated Notes with a monthly Interest
Payment Period, on the third Wednesday of each month; with a
quarterly Interest Payment Period, on the third Wednesday of
March, June, September and December of each year; with a
semi-annual Interest Payment Period, on the third Wednesday of
the two months specified pursuant to Settlement Procedure "A"
below; and with an annual Interest Payment Period, on the third
Wednesday of the month specified pursuant to Settlement Procedure
"A" below; provided, however, that if an Interest Payment Date
for a Floating Rate Certificated Note would otherwise be a day
that is not a Business Day with respect to such Floating Rate
Certificated Note, such Interest Payment Date will be the next
succeeding Business Day with respect to such Floating Rate
Certificated Note, except in the case of a Floating Rate
Certificated Note for which the Base Rate is LIBOR, if such
Business Day is in the next succeeding calendar month, such
Interest Payment Date will be the immediately preceding Business
Day; and provided further, that in the case of a Floating Rate
Certificated Note issued between a Regular Record Date and an
Interest Payment Date, 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 thirty-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 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,
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, the Designated LIBOR
Page and 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).
Such confirmation shall constitute a Company Order to the
Trustee for the authentication of such Certificated Note and
shall be deemed to satisfy the requirements for the delivery
of the Board Resolution and Officers' Certificates set forth
in the third paragraph of Section 303 of the Indenture.
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 Trustee: Periodically, the
Trustee will send to the Company a statement setting forth the
principal amount of Certificated Notes outstanding as of that
date.
B-2
EXHIBIT B
SCANA
CORPORATION
Medium-Term Notes
Due from Nine Months to Thirty Years
from Date of Issue
TERMS AGREEMENT
-----------------, ------
Attention:
Subject in all respects to the terms and conditions of the Selling
Agency Agreement (the "Agreement") dated , 2000, among UBS Warburg LLC, Credit
Suisse First Boston Corporation and Banc of America Securities LLC 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 UBS Warburg LLC shall be directed to it at 000 Xxxxxxxxxx
Xxxxxxxxx, Xxxxxxxx, XX 00000.
Notices to Credit Suisse First Boston Corporation shall be directed to
it at Xxxxxx Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Short and
Medium Term Products Group.
Notices to Banc of America Securities LLC shall be directed to it at
Bank of America Corporate Center, 000 Xxxxx Xxxxx Xxxxxx; XX0-000-00-00,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000.
