Registration No. 333- 65105
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
------------
PRE-EFFECTIVE AMENDMENT NO. 4 TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SCANA CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
South Carolina
(State or Other Jurisdiction of Incorporation or Organization)
57-0784499
(I.R.S. Employer Identification No.)
1426 Main Street Columbia, South Carolina 29201 (803) 217-9000
(Address, Including Zip Code and Telephone Number, Including Area Code,
of Registrant's Principal Executive Offices)
H.T. Arthur, II, Senior Vice President, General Counsel and Assistant Secretary,
1426 Main St., Columbia, SC 29201 (803) 217-8547
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code,
of Agent For Service)
With copies to:
John W. Currie, Esq. Kevin Stacey, Esq.
McNair Law Firm, P.A. Thelen Reid & Priest LLP
1301 Gervais Street - 17th Floor 40 West 57th Street
Columbia, South Carolina 29201 New York, New York 20019
(803) 376-2272 (212) 603-2000
Approximate date of commencement of proposed sale to the public: After the
effective date of the Registration Statement, as determined by market conditions
and other factors.
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. [ ]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [x]
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
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If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Each Class Amount Maximum Maximum Amount of
of Securities to be to be Offering Aggregate Registration
Registered Registered Price Offering Fee
Per Unit* Price*
Medium Term Notes $200,000,000 100% $200,000,000 $59,000
* Determined solely for the purpose of calculating the registration fee.
The Registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the
Registrant shall file a further amendment which specifically states that
this Registration Statement shall thereafter become effective in accordance
with Section 8(a) of the Securities Act of 1933 or until the Registration
Statement shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
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SUBJECT TO COMPLETION, DATED OCTOBER 27, 1998
Prospectus
$200,000,000
SCANA Corporation
Medium-Term Notes
Due From Nine Months to Thirty Years From Date of Issue
SCANA Corporation (the "Company") may from time to time offer its Medium-Term
Notes (the "Notes"), in an aggregate principal amount of up to $200,000,000. The
Notes will be offered at varying maturities from nine months to thirty years
from their dates of issue and may be subject to redemption at the option of the
Company or repayment at the option of the holder prior to maturity. The Notes
will be designated as to series as set forth in the applicable Pricing
Supplement. Each Note will bear interest at a fixed rate (a "Fixed Rate Note"),
or at a floating rate (a "Floating Rate Note") determined by reference to the
Commercial Paper Rate, LIBOR, the Treasury Rate or any other Base Rate set forth
in the applicable Pricing Supplement, as adjusted by the Spread or Spread
Multiplier (as each of such terms is hereinafter defined), if any, applicable to
such Note. See "Description of Medium-Term Notes."
Each Note will be represented by either a global security (a "Book-Entry Note")
registered in the name of the nominee of The Depository Trust Company or other
depositary (a "Depositary"), or a certificate issued in definitive form (a
"Certificated Note"), as set forth in the applicable Pricing Supplement.
Interests in Book-Entry Notes will be shown on, and transfers thereof will be
effected only through, records maintained by the Depositary and its
participants.
The Notes will be issued in denominations of $1,000 and integral multiples of
$1,000 in excess thereof.
Unless otherwise indicated in the applicable Pricing Supplement, interest on
each Fixed Rate Note will accrue from the date of issue and will be payable
semi-annually on each April 1 and October 1 and at maturity, and interest on
each Floating Rate Note will accrue from its date of issue and will be payable
monthly, quarterly, semi-annually or annually, as set forth in the applicable
Pricing Supplement, and at maturity.
Any applicable interest rate or interest rate formula, the issue price, the
maturity, any interest payment dates, any redemption provisions, any repayment
provisions and any other terms for each Note, and whether such Note will be a
Book-Entry Note or a Certificated Note, will be established at the time of
issuance of such Note and set forth therein and in the applicable Pricing
Supplement.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS OR ANY SUPPLEMENT HERETO. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
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Price to Agents' Proceeds to
Public(1) Commission(2) the Company(2)(3)
Per Note... 100.000% .125% - .750% 99.875% - 99.250%
Total...... $200,000,000 $250,000 - $1,500,000 $199,750,000 - $198,500,000
(1) The Notes will be sold at 100% of their principal amount except as may be
provided in the applicable Pricing Supplement. However, Notes will not be sold
at a discount which constitutes "original issue discount" under the Internal
Revenue Code of 1986, as amended.
(2) The Company will pay a commission to PaineWebber Incorporated, Credit Suisse
First Boston Corporation or NationsBanc Montgomery Securities LLC, each as Agent
(collectively, the "Agents"), in the form of a discount, ranging from .125% to
.750%, depending upon the maturity of the Note, of the principal amount of any
Note sold through such Agent. The Company may also sell Notes to any Agent at a
discount for resale to one or more investors or other purchasers at varying
prices related to prevailing market prices at the time of resale, as determined
by such Agent.
(3) Before deducting other expenses payable by the Company estimated to be
$194,000, including reimbursement of certain of the Agents' expenses.
The Notes are being offered on a continuous basis by the Company through the
Agents, each of which has agreed to use its reasonable efforts to solicit offers
to purchase the Notes. The Notes may also be sold by the Company to an Agent at
a discount for resale to one or more investors or other purchasers at varying
prices related to prevailing market prices at the time of resale, as determined
by such Agent. The Company may also sell the Notes directly to investors in
those jurisdictions where it is authorized to do so or to or through other
agents. The name of any such other agent and any applicable commission or
discount will be set forth in the applicable Pricing Supplement. Unless
otherwise specified in the applicable Pricing Supplement, the Notes will not be
listed on any securities exchange, and there can be no assurance that all of the
Notes offered will be sold or that there will be a secondary market for the
Notes. The Company reserves the right to withdraw, cancel or modify the offer
made hereby without notice. The Company or an agent, if it should solicit the
offer on an agency basis, may reject any offer to purchase Notes in whole or in
part.
See "Plan of Distribution."
PaineWebber Incorporated
Credit Suisse First Boston
NationsBanc Montgomery Securities LLC
The date of this Prospectus is October __, 1998.
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of any offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
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Certain persons participating in this offering may engage in transactions that
stabilize, maintain or otherwise affect the price of the Notes, including
over-allotment, stabilizing and short covering transactions in the Notes, and
the imposition of a penalty bid, in connection with an offering. For a
description of these activities, see "Plan of Distribution."
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports and other information with the Securities and
Exchange Commission (the "Commission"). Reports, proxy and information
statements, and other information filed by the Company may be inspected and
copied at the public reference facilities maintained by the Commission at 450
Fifth Street, N.W., Room 1024, Washington, D.C. 20549 and at the Commission's
regional offices located at Seven World Trade Center, Suite 1300, New York, New
York 10048 and at 500 West Madison Street, Suite 1400, Chicago, Illinois
60661-2511. Copies of such material can also be obtained by mail from the Public
Reference Section of the Commission at 450 Fifth Street, N.W., Washington, D.C.
20549, at prescribed rates. The Commission also maintains a web site on the
Internet that contains reports, proxy and information statements and other
information regarding registrants that file electronically with the Commission,
and such web site is located at http://www.sec.gov. The Company's common stock,
without par value (the "Common Stock"), is listed for trading on the New York
Stock Exchange. Reports, proxy and information statements, and other information
concerning the Company may also be inspected at the offices of such Exchange, 20
Broad Street, New York, New York 10005.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, which have been filed with the Commission by
the Company pursuant to the Exchange Act (File No. 1-8809), are incorporated
herein by reference:
(a) Annual Report of the Company on Form 10-K for the year ended
December 31, 1997, as amended.
(b) Quarterly Reports of the Company on Form 10-Q for the quarters
ended March 31, 1998 and June 30, 1998.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act subsequent to the date of this Prospectus and prior
to the termination of the offering or offerings made by this Prospectus shall be
deemed to be incorporated by reference in this Prospectus and to be a part
hereof from the date of filing of such documents. Any statement contained herein
or in a document incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this Prospectus to
the extent that a statement contained herein or in any other subsequently filed
document that also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
The Company hereby undertakes to provide without charge to each person,
including any beneficial owner, to whom a copy of this Prospectus is delivered,
on the written or oral request of any such person, a copy of any or all of the
documents referred to above that have been incorporated by reference in this
Prospectus, other than exhibits to such documents, unless such exhibits are
specifically incorporated by reference into such documents. Written or
telephonic requests for such copies should be directed to H. John Winn, III,
Manager-Investor Relations and Shareholder Services, SCANA Corporation,
Columbia, South Carolina 29218, telephone number (803) 217-9240.
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THE COMPANY
The Company is an energy-based holding company which, through its
subsidiaries, engages principally in electric and natural gas utility operations
and other energy-related businesses. The Company, a South Carolina corporation
having general business powers, was incorporated on October 10, 1984 and is a
public utility holding company within the meaning of the Public Utility Holding
Company Act of 1935, as amended, but is presently exempt from registration under
such Act.
The principal executive offices of the Company are located at 1426 Main
Street, Columbia, South Carolina 29201, telephone (803) 217-9000, and its
mailing address is Columbia, South Carolina 29218.
Regulated Businesses
The Company's regulated subsidiaries, including South Carolina Electric
& Gas Company ("SCE&G"), South Carolina Generating Company, Inc. ("GENCO") and
South Carolina Pipeline Corporation ("Pipeline Corporation"), are engaged in the
generation, transmission, distribution and sale of electricity, the purchase,
transmission, distribution and sale at wholesale and retail of natural gas and
the provision of urban bus service, in various areas of South Carolina. These
subsidiaries own most of the Company's consolidated assets and, in 1997,
contributed most of its consolidated net income.
Nonregulated Businesses
The Company's other subsidiaries are engaged in the businesses of (i)
marketing natural gas and light hydrocarbons, (ii) producing, storing,
distributing and selling propane, (iii) providing fiber optic, video and radio
communications, (iv) investing in telecommunications companies, (v) providing
energy and security-related products and services to residential customers, and
(vi) power plant management and maintenance services.
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<TABLE>
<CAPTION>
SUMMARY CONSOLIDATED FINANCIAL AND OPERATING
INFORMATION (Millions of Dollars Except Per
Share Amounts)
(Unaudited)
Six Months Ended Twelve Months Ended
June 30, December 31,
1998 1997 1997 1996 1995
------ ------ ------ ------ ------
Statement of Income Data
Operating Revenues:
<S> <C> <C> <C> <C> <C>
Electric ..................... $569 $500 $1,103 $1,107 $1,006
Gas........................... 224 216 419 403 343
Transit....................... 1 - 1 3 4
---- ---- ------ ------ ------
Total Operating Revenues.... 794 717 1,523 1,513 1,353
Operating Expenses.............. 629 575 1,209 1,199 1,065
---- ---- ------ ------ ------
Operating Income................ 165 142 314 314 288
Other Income.................... 6 10 38 29 8
Net Income...................... $106 $ 87 $ 221 $ 215 $ 168
Earnings Per Weighted Average
Common Share.................. $1.00 $.81 $ 2.06 $ 2.05 $ 1.70
Dividends Declared Per
Common Share.................. $.77 $.755 $1.57 $1.47 $1.44
Weighted Average Common
Shares Outstanding (Millions). 106.8 106.8 107.1 105.1 99.0
Electric Territorial Sales
(Gigawatt Hours)............... 9,135 8,323 17,968 18,010 17,583
</TABLE>
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RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of consolidated earnings to fixed
charges for the Company for the five years ended December 31, 1997 and for the
six months ended June 30, 1998. For purposes of calculating the ratio, earnings
consist of the sum of (i) net income, (ii) the provision for income taxes and
(iii) fixed charges exclusive of interest capitalized. Fixed charges consist of
(i) interest expense, whether expensed or capitalized, (ii) amortization of
deferred loan costs, whether expensed or capitalized, and (iii) one-third of net
rental expense, which is deemed to be representative of an interest factor.
Six Months Year Ended December 31,
Ended June 30, 1998 1997 1996 1995 1994 1993
------------------- ---------------------------------------
3.74 3.65 3.60 3.00 2.55 3.38
USE OF PROCEEDS
The proceeds from the sale of the Notes may be used to fund business
activities in nonutility subsidiaries, to reduce short-term debt incurred in
connection therewith or for general corporate purposes.
DESCRIPTION OF THE MEDIUM-TERM NOTES
The Notes will be issued as debt securities ("Debt Securities") under
an Indenture dated as of November 1, 1989 (the "Indenture") between the Company
and The Bank of New York, as trustee (the "Trustee"). A copy of the Indenture
has been incorporated by reference as an exhibit to the Registration Statement
of which this Prospectus is a part. The following summary of certain terms of
the Notes, the Debt Securities and the Indenture is subject in all respects to,
and is qualified in its entirety by, all of the provisions of the Indenture,
including the definitions of certain terms used herein. Capitalized terms used
herein and not defined herein shall have the meanings assigned to them in the
Indenture. Whenever any particular section of the Indenture or any term defined
therein is referred to, such section or definition is incorporated herein by
reference, and the statement in connection with which such reference is made is
qualified in its entirety by such reference.
General
The Notes will be designated as to series as set forth in the
applicable Pricing Supplement. The Notes and all other Debt Securities of any
series issued under the Indenture will be unsecured and will in all respects be
equally and ratably entitled to the benefits of the Indenture with respect to
such series, without preference, priority, or distinction, and will rank pari
passu with all other unsecured and unsubordinated indebtedness of the Company.
(Section 301)
While the Indenture does not limit the amount of Debt Securities that
can be issued thereunder, the Notes offered pursuant to this Prospectus will be
limited to an aggregate principal amount of $200,000,000. (Section 301)
The Notes will be offered on a continuous basis and will mature at par
on any Business Day (as hereinafter defined) from nine months to thirty years
from the date of issue, as selected by the purchaser and agreed to by the
Company, and may be subject to redemption or repayment prior to maturity at the
price or prices and on the date or dates as specified in the applicable Pricing
Supplement. Each Note will bear interest at either (i) a fixed rate (a "Fixed
Rate Note") or (ii) a floating rate determined by reference to the interest rate
basis or a combination of interest rate bases (the "Base Rate") specified in the
applicable Pricing Supplement (a "Floating Rate Note") that may be adjusted by a
Spread or Spread Multiplier (each as hereinafter defined). "Business Day" means
any day, other than a Saturday or Sunday, that is not a day on which banking
institutions are authorized or required by law or regulation to be closed in The
City of New York and, with respect to LIBOR Notes (as hereinafter defined), is a
London Banking Day. "London Banking Day" means any day on which dealings in
deposits in U. S. Dollars are transacted in the London interbank market.
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Each Note will be issued initially as either a Book-Entry Note or a
Certificated Note in fully registered form without coupons. Except as set forth
under "Book-Entry System," Book-Entry Notes will not be issuable in certificated
form. The authorized denominations of the Notes will be $1,000 and integral
multiples of $1,000 in excess thereof. (Section 301 and 302)
"Holder," with respect to a Note, means the person in whose name such Note
is registered in the Security Register (as hereinafter defined). The Holder of
each Book-Entry Note will be the nominee of the Depositary. As such, that
nominee, and not the owners of beneficial interests in such Book-Entry Note,
will be entitled to payments and the other rights of Holders hereinafter
described with respect to such Book-Entry Note. See "Book-Entry System."
The Pricing Supplement relating to each Note will describe the
following terms: (1) whether such Note is a Fixed Rate Note or a Floating Rate
Note; (2) the price (expressed as a percentage of the aggregate principal amount
thereof) at which such Note will be issued (the "Issue Price"); (3) the date on
which such Note will be issued (the "Original Issue Date"); (4) the date on
which such Note will mature (the "Maturity Date"); (5) if such Note is a Fixed
Rate Note, the rate per annum at which such Note will bear interest and the
interest payment dates; (6) if such Note is a Floating Rate Note, the Base Rate,
the Initial Interest Rate, the Interest Reset Period, the Interest Reset Dates,
the Interest Payment Period, the Interest Payment Dates, the Index Maturity, the
Maximum Interest Rate and the Minimum Interest Rate, if any, and the Spread or
Spread Multiplier, if any (all as hereinafter defined), and any other terms
relating to the particular method of calculating the interest rate for such
Note; (7) whether such Note may be redeemed at the option of the Company, or
repaid at the option of the Holder, prior to the Maturity Date and, if so, the
provisions relating to such redemption or repayment; (8) whether such Note will
be issued initially as a Book-Entry Note or a Certificated Note; and (9) any
other terms of such Note not inconsistent with the provisions of the Indenture.
Payment of Principal and Interest
Until the Notes are paid or payment thereof is provided for, the
Company will, at all times, maintain a paying agent (the "Paying Agent") in The
City of New York capable of performing the duties described herein to be
performed by the Paying Agent. The Company has initially appointed The Bank of
New York, 101 Barclay Street, 21W, New York, New York 10286, as Paying Agent.
The Company will notify the Trustee in accordance with the Indenture of any
change in the Paying Agent or its address. (Section 1002)
Unless otherwise specified in the applicable Pricing Supplement,
payments of interest on Notes (other than interest payable at maturity or upon
earlier redemption or repayment) will be made by mailing a check to the Holder
at the address of such Holder appearing on the Security Register on the
applicable Record Date (as hereinafter defined). The Indenture provides that, in
the event of a default in the payment of interest, the Company may (i) fix a
Special Record Date, in which case interest on the Notes shall be paid to the
Holder at the close of business on such Special Record Date, or (ii) make
payment in any other lawful manner. Unless otherwise specified in the applicable
Pricing Supplement, principal and any premium and interest payable at maturity
or upon earlier redemption or repayment in respect of a Note will be paid in
immediately available funds upon surrender of such Note at the office of the
Paying Agent. (Sections 307 and 1105)
All moneys paid by the Company to a Paying Agent for the payment of
principal of (and premium, if any) and interest, if any, on any Note which
remains unclaimed at the end of two years after such principal, premium or
interest shall have become due and payable will, upon request of the Company, be
repaid to the Company and the Holder of such Note will thereafter look only to
the Company for payment thereof. (Section 1003)
Any payment required to be made in respect of a Note on a date that is
not a Business Day need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made on such date,
and no additional interest shall accrue as a result of such delayed payment;
provided, however, that with respect to an Interest Payment Date on any LIBOR
Note, if such Business Day is in the next succeeding calendar month, such
Interest Payment Date shall be the immediately preceding Business Day. (Section
114)
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The "Record Date" with respect to any Interest Payment Date shall be
the date 15 calendar days (unless otherwise specified in the applicable Pricing
Supplement) immediately preceding such Interest Payment Date whether or not such
date shall be a Business Day. Interest payable and punctually paid or duly
provided for on any Interest Payment Date will be paid to the person in whose
name a Note is registered at the close of business on the Record Date next
preceding such Interest Payment Date; provided, however, that the first payment
of interest on any Note with an Original Issue Date between a Record Date and an
Interest Payment Date will be made on the Interest Payment Date following the
next succeeding Record Date to the registered owner on such next succeeding
Record Date; and provided, further, that interest payable at maturity or upon
earlier redemption or repayment will be payable to the person to whom principal
shall be payable.
All percentages resulting from any calculations will be rounded, if
necessary, to the nearest one hundred-thousandth of a percentage point, with
five millionths of a percentage point being rounded upwards.
Fixed Rate Notes
Each Fixed Rate Note will bear interest from its Original Issue Date at
the rate per annum stated on the face thereof until the principal amount thereof
is paid or made available for payment. Unless otherwise set forth in an
applicable Pricing Supplement, interest on each Fixed Rate Note will be payable
semi-annually each April 1 and October 1 (each an "Interest Payment Date") and
at maturity or upon earlier redemption or repayment. Each payment of interest in
respect of an Interest Payment Date shall include interest accrued to but
excluding such Interest Payment Date. Interest on Fixed Rate Notes will be
computed on the basis of a 360-day year of twelve 30-day months.
Floating Rate Notes
Each Floating Rate Note will bear interest at rates determined by
reference to the Base Rate plus or minus the Spread, if any, or multiplied by
the Spread Multiplier, if any (each as specified in the applicable Pricing
Supplement) until the principal thereof is paid or made available for payment.
The "Spread" is the number of basis points (one basis point equals one-hundredth
of a percentage point) specified in the applicable Pricing Supplement as being
applicable to such Floating Rate Note, and the "Spread Multiplier" is the
percentage specified in the applicable Pricing Supplement as being applicable to
such Note. The "Index Maturity" is the period to maturity of the instrument or
obligation with respect to which the related Base Rate is calculated. The
applicable Pricing Supplement will designate one of the following Base Rates as
applicable to each Floating Rate Note: (a) the Commercial Paper Rate ( a
"Commercial Paper Rate Note"); (b) LIBOR (a "LIBOR Note"); (c) the Treasury Rate
(a "Treasury Rate Note"); or (d) such other Base Rate as is set forth in the
applicable Pricing Supplement.
Any Floating Rate Note may also have either or both of the following:
(i) a maximum numerical interest rate limitation, or ceiling, on the rate of
interest which may accrue during any interest period (the "Maximum Interest
Rate"); and (ii) a minimum numerical interest rate limitation, or floor, on the
rate of interest which may accrue during any interest period (the "Minimum
Interest Rate"). In addition to any Maximum Interest Rate that may be applicable
to any Floating Rate Note, the interest rate on a Floating Rate Note will in no
event be higher than the maximum rate permitted by applicable law, as the same
may be modified by United States law of general application.
The rate of interest on each Floating Rate Note will be reset daily,
weekly, monthly, quarterly, semi-annually, annually or for such other period
(the "Interest Reset Period"), as specified in the applicable Pricing
Supplement. Unless otherwise specified in the applicable Pricing Supplement, the
date or dates on which the rate of interest will be reset (each an "Interest
Reset Date") will be, in the case of Floating Rate Notes which reset daily, each
Business Day; in the case of Floating Rate Notes (other than Treasury Rate
Notes) that reset weekly, Wednesday of each week; in the case of Treasury Rate
Notes that reset weekly, Tuesday of each week; in the case of Floating Rate
Notes that reset monthly, the third Wednesday of each month; in the case of
Floating Rate Notes that reset quarterly, the third Wednesday of March, June,
September and December; in the case of Floating Rate Notes that reset
semi-annually, the third Wednesday of the two months specified in the applicable
Pricing Supplement; in the case of Floating Rate Notes that reset annually, the
third Wednesday of the month specified in the applicable Pricing Supplement; and
in the case of Floating Rate Notes which reset for other periods, the day of the
week and month or months specified in the applicable Pricing Supplement.
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If any Interest Reset Date for any Floating Rate Note is not a Business
Day, such Interest Reset Date shall be postponed to the next day that is a
Business Day, except that, in the case of a LIBOR Note, if such Business Day is
in the next succeeding calendar month, such Interest Reset Date shall be the
immediately preceding Business Day. If an applicable auction of Treasury Bills
(as hereinafter defined) falls on a day that would otherwise be an Interest
Reset Date for Treasury Rate Notes, the Interest Reset Date shall be the next
Business Day.
Interest on each Floating Rate Note will be payable monthly, quarterly,
semi-annually or annually (the "Interest Payment Period"). Except as provided
below or in the applicable Pricing Supplement, the Interest Payment Date will
be, in the case of Floating Rate Notes with a monthly Interest Payment Period,
the third Wednesday of each month; in the case of Floating Rate Notes with a
quarterly Interest Payment Period, the third Wednesday of March, June, September
and December; in the case of Floating Rate Notes with a semi-annual Interest
Payment Period, the third Wednesday of the two months specified in the
applicable Pricing Supplement; and in the case of Floating Rate Notes with an
annual Interest Payment Period, the third Wednesday of the month specified in
the applicable Pricing Supplement.
Interest payments on each Interest Payment Date for Floating Rate Notes
(except in the case of Floating Rate Notes which reset daily or weekly) will
include accrued interest from and including the Original Issue Date or from but
excluding the last date in respect of which interest has been paid, as the case
may be, to, but excluding, such Interest Payment Date. In the case of Floating
Rate Notes that reset daily or weekly, interest payments will include accrued
interest from and including the Original Issue Date or from but excluding the
last date in respect of which interest has been paid, as the case may be, to,
and including, the Record Date immediately preceding the applicable Interest
Payment Date, and at maturity the interest payable will include interest accrued
from and including the Original Issue Date or from but excluding the last date
in respect of which interest has been paid as the case may be, to, but
excluding, the Maturity Date. Accrued interest will be calculated by multiplying
the principal amount of a Floating Rate Note by an accrued interest factor. This
accrued interest factor will be computed by adding the interest factors
calculated for each day in the period for which accrued interest is being
calculated. The interest factor (expressed as a decimal) for each such day will
be computed by dividing the interest rate applicable to such day by 360, in the
case of Commercial Paper Rate Notes and LIBOR Notes, or by the actual number of
days in the year, in the case of Treasury Rate Notes. The interest rate in
effect on each day will be (a) if such day is an Interest Reset Date, the
interest rate with respect to the Interest Determination Date (as hereinafter
defined) pertaining to such Interest Reset Date, or (b) if such day is not an
Interest Reset Date, the interest rate with respect to the Interest
Determination Date pertaining to the next preceding Interest Reset Date, subject
in either case to any Maximum or Minimum Interest Rate limitation referred to
above and to any adjustment by a Spread or a Spread Multiplier referred to
above; provided, however, that the interest rate in effect for the period from
the Original Issue Date to the first Interest Reset Date set forth in the
Pricing Supplement with respect to a Floating Rate Note will be the "Initial
Interest Rate" specified in the applicable Pricing Supplement.
The "Interest Determination Date" pertaining to an Interest Reset Date
for a Commercial Paper Rate Note will be the second Business Day next preceding
such Interest Reset Date. The Interest Determination Date pertaining to an
Interest Reset Date for a LIBOR Note will be the second London Banking Day next
preceding such Interest Reset Date. The Interest Determination Date pertaining
to an Interest Reset Date for a Treasury Rate Note will be the day of the week
in which such Interest Reset Date falls on which Treasury Bills of the Index
Maturity specified on the face of the Treasury Rate Note are auctioned. Treasury
Bills are normally sold at auction on Monday of each week, unless that day is a
legal holiday, in which case the auction is normally held on the following
Tuesday, except that such auction may be held on the preceding Friday. If, as
the result of a legal holiday, an auction is so held on the preceding Friday,
such Friday will be the Interest Determination Date pertaining to the Interest
Reset Date occurring in the next succeeding week.
The "Calculation Date," where applicable, pertaining to any Interest
Determination Date is the tenth calendar day after such Interest Determination
Date or, if any such day is not a Business Day, the next succeeding Business
Day.
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Unless otherwise specified in the applicable Pricing Supplement, The
Bank of New York shall be the calculation agent (the "Calculation Agent") with
respect to the Floating Rate Notes. Upon request of the holder of any Floating
Rate Note, the Calculation Agent will provide the interest rate then in effect
and, if determined, the interest rate which will become effective on the next
Interest Reset Date with respect to such Floating Rate Note.
Commercial Paper Rate Notes
Each Commercial Paper Rate Note will bear interest at the interest rate
(calculated with reference to the Commercial Paper Rate and the Spread or Spread
Multiplier, if any) specified in the Commercial Paper Rate Note and the
applicable Pricing Supplement.
"Commercial Paper Rate" means, with respect to any Interest
Determination Date relating to a Commercial Paper Rate Note (a "Commercial Paper
Rate Interest Determination Date"), the Money Market Yield (as hereinafter
defined) on such date of the rate for commercial paper having the Index Maturity
specified in the applicable Pricing Supplement as published by the Board of
Governors of the Federal Reserve System in "Statistical Release H.15(519),
Selected Interest Rates" or any successor publication ("H.15(519)") under the
heading "Commercial Paper -Nonfinancial." In the event that such rate is not
published by 3:00 P.M., New York City time, on the Calculation Date pertaining
to such Commercial Paper Rate Interest Determination Date, then the Commercial
Paper Rate will be the Money Market Yield on such Commercial Paper Rate Interest
Determination Date of the rate for commercial paper of the Index Maturity
specified in the applicable Pricing Supplement as published by the Federal
Reserve Bank of New York in its daily statistical release "Composite 3:30 P.M.
Quotations for U.S. Government Securities" or any successor publication
("Composite Quotations") under the heading "Commercial Paper." If such rate is
not published in either H.15(519) or Composite Quotations by 3:00 P.M., New York
City time, on such Calculation Date, then the Commercial Paper Rate will be
calculated by the Calculation Agent and will be the Money Market Yield of the
arithmetic mean of the offered rates, as of approximately 11:00 A.M., New York
City time, on such Commercial Paper Rate Interest Determination Date, of three
leading dealers of commercial paper in the City of New York (which may include
one or more of the Agents) selected by the Calculation Agent (after consultation
with the Company) for commercial paper of the specified Index Maturity placed
for an industrial issuer whose bond rating is "AA," or the equivalent, from a
nationally recognized statistical rating agency; provided, however, that if the
dealers selected as aforesaid by the Calculation Agent are not quoting rates as
set forth in this sentence, the Commercial Paper Rate in effect for the
applicable period will be the Commercial Paper Rate determined as of the
immediately preceding Commercial Paper Rate Interest Determination Date.
"Money Market Yield" shall be a yield (expressed as a percentage
rounded, if necessary, to the nearest hundred-thousandth of a percent)
calculated in accordance with the following formula:
Money Market Yield = DX360 x 100
360-(DXM)
where "D" refers to the per annum rate for commercial paper, quoted on a bank
discount basis and expressed as a decimal; and "M" refers to the actual number
of days in the interest period for which interest is being calculated.
LIBOR Notes
Each LIBOR Note will bear interest at the interest rate (calculated
with reference to LIBOR and the Spread or Spread Multiplier, if any) specified
in the LIBOR Note and in the applicable Pricing Supplement.
"LIBOR" means the rate determined by the Calculation Agent in
accordance with the following provisions:
(a) With respect to an Interest Determination Date relating to a
LIBOR Note (a "LIBOR Interest Determination Date"), LIBOR will
be, as specified in the applicable Pricing Supplement, either
(i) if "LIBOR Reuters" is specified in the applicable Pricing
Supplement, the arithmetic mean of the
12
offered rates for deposits in the Designated LIBOR Currency
(as hereinafter defined) having the
Index Maturity specified in the applicable Pricing Supplement,
commencing on the second London Banking Day immediately
following such LIBOR Interest Determination Date, that appear
on the Designated LIBOR Page (as hereinafter defined) as of
11:00 A.M., London time, on such LIBOR Interest Determination
Date, if at least two such offered rates appear on the
Designated LIBOR Page, or (ii) if "LIBOR Telerate" is
specified in the applicable Pricing Supplement, the rate for
deposits in the Designated LIBOR Currency having the Index
Maturity specified in the applicable Pricing Supplement,
commencing on the second London Banking Day immediately
following such LIBOR Interest Determination Date, that appears
on the Designated LIBOR Page as of 11:00 A.M., London time, on
such LIBOR Interest Determination Date. If fewer than two
offered rates appear, or if no rate appears, as applicable,
LIBOR in respect of such LIBOR Interest Determination Date
will be determined as if the parties had specified the rate
described in (b) below.
(b) With respect to a LIBOR Interest Determination Date on which fewer than
two offered rates appear on the Designated LIBOR Page, as specified in (a)(i)
above, or on which no rate appears on the Designated LIBOR Page, as specified in
(a)(ii) above, as applicable, LIBOR will be determined on the basis of the rates
at which deposits in the Designated LIBOR Currency having the Index Maturity
specified in the applicable Pricing Supplement are offered at approximately
11:00 A.M., London time, on such LIBOR Interest Determination Date by four major
banks ("Reference Banks") in the London interbank market selected by the
Calculation Agent (after consultation with the Company) to prime banks in the
London interbank market commencing on the second London Banking Day immediately
following such LIBOR Interest Determination Date and in a principal amount that
is representative for a single transaction in such Designated LIBOR Currency in
such market at such time. The Calculation Agent will request the principal
London office of each of the Reference Banks to provide a quotation of its rate.
If at least two such quotations are provided, LIBOR in respect of such LIBOR
Interest Determination Date will be the arithmetic mean of such quotations. If
fewer than two quotations are provided, LIBOR in respect of such LIBOR Interest
Determination Date will be the arithmetic mean of the rates quoted as of 11:00
A.M., in the applicable Principal Financial Center (as hereinafter defined) on
such LIBOR Interest Determination Date by three major banks in such Principal
Financial Center (which may include one or more of the Agents or their
respective affiliates) selected by the Calculation Agent (after consultation
with the Company) for loans in the Designated LIBOR Currency to leading banks
having the Index Maturity specified in the applicable Pricing Supplement
commencing on the second London Banking Day immediately following such LIBOR
Interest Determination Date and in a principal amount that is representative for
a single transaction in such Designated LIBOR Currency in such market at such
time; provided, however, that if the banks selected as aforesaid by the
Calculation Agent are not quoting as set forth in this sentence, LIBOR with
respect to such LIBOR Interest Determination Date will be LIBOR determined on
the immediately preceding LIBOR Interest Determination Date.
"Designated LIBOR Currency" means, with respect to any LIBOR Note, the
currency (including composite currency units), if any, designated in the
applicable Pricing Supplement as the currency for which LIBOR will be
calculated. If no such currency is designated in the Note and the applicable
Pricing Supplement, the Designated LIBOR Currency shall be U.S. dollars.
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"Designated LIBOR Page" means either (a) if "LIBOR Reuters" is
designated in the applicable Pricing Supplement, the display on the Reuters
Monitor Money Rates Service on the page designated in the applicable Pricing
Supplement (or such other page as may replace such designated page on that
service for the purpose of displaying London interbank offered rates of major
banks for the related Designated LIBOR Currency) for the purpose of displaying
the London interbank rates of major banks for the applicable Designated LIBOR
Currency, or (b) if "LIBOR Telerate" is designated in the applicable Pricing
Supplement, the display on the Dow Jones Telerate Service on the page designated
in the applicable Pricing Supplement (or such other page as may replace such
designated page on that service or such other service or services as may be
nominated by the British Bankers' Association for the purpose of displaying
London interbank offered rates for the related Designated LIBOR Currency) for
the purpose of displaying the London interbank rates of major banks for the
applicable Designated LIBOR Currency. If neither LIBOR Reuters nor LIBOR
Telerate is specified in the applicable Pricing Supplement, LIBOR for the
applicable Designated LIBOR Currency will be determined as if LIBOR Telerate
(and, if the U.S. dollar is the Designated LIBOR Currency, page 3750) had been
specified.
"Principal Financial Center" means, as with respect to any LIBOR Note, the
capital city of the country that issues as its legal tender the Designated LIBOR
Currency of such Note, except that with respect to U.S. dollars and European
Currency Units (as defined and revised from time to time by the Council of the
European Communities), the Principal Financial Center shall be The City of New
York and Brussels, respectively.
Treasury Rate Notes
Each Treasury Rate Note will bear interest at the interest rate
(calculated with reference to the Treasury Rate and the Spread or Spread
Multiplier, if any) specified in the Treasury Rate Note and in the applicable
Pricing Supplement.
"Treasury Rate" means, with respect to any Interest Determination Date
relating to a Treasury Rate Note (a "Treasury Rate Interest Determination
Date"), the rate applicable to the most recent auction of direct obligations of
the United States ("Treasury Bills") having the Index Maturity specified in the
applicable Pricing Supplement, as such rate is published in H.15(519) under the
heading "Treasury Bills - auction average (investment)" or, if not published by
3:00 P.M., New York City time, on the Calculation Date pertaining to such
Treasury Rate Interest Determination Date, the auction average rate (expressed
as a bond equivalent on the basis of a year of 365 or 366 days, as applicable,
and applied on a daily basis) as otherwise announced by the United States
Department of Treasury. In the event that the results of the auction of Treasury
Bills having the specified Index Maturity are not reported as provided by 3:00
P.M., New York City time, on such Calculation Date, or if no such auction is
held in a particular week, then the Treasury Rate shall be calculated by the
Calculation Agent and shall be a yield to maturity (expressed as a bond
equivalent on the basis of a year of 365 or 366 days, as applicable, and applied
on a daily basis) of the arithmetic mean of the secondary market bid rates, as
of approximately 3:30 P.M., New York City time, on such Treasury Rate Interest
Determination Date, of three leading primary United States government securities
dealers (which may include one or more of the Agents) selected by the
Calculation Agent (after consultation with the Company), for the issue of
Treasury Bills with a remaining maturity closest to the specified Index
Maturity; provided, however, that if the dealers selected as aforesaid by the
Calculation Agent are not quoting as set forth in this sentence, the Treasury
Rate in effect for the applicable period will be the Treasury Rate determined on
the immediately preceding Treasury Rate Interest Determination Date.
14
<PAGE>
Optional Redemption, Repayment and Repurchase
The Pricing Supplement relating to each Note will indicate either that
such Note cannot be redeemed prior to Stated Maturity or that such Note will be
redeemable at the option of the Company, in whole or in part, on any date on or
after the date designated as the "Initial Redemption Date" in such Pricing
Supplement, at a price or prices set forth in the applicable Pricing Supplement,
together with accrued interest to the date of redemption. The Company may
exercise such option by notifying the Trustee at least 45 days prior to the date
of redemption. At least 30 but not more than 60 days prior to the date of
redemption the Trustee shall mail notice of such redemption by first class mail,
postage prepaid, to the Holder of such Note. In the event of redemption of a
Note in part only, a new Note or Notes for the unredeemed portion thereof shall
be issued to the Holder thereof upon the cancellation thereof. The Notes will
not be subject to any sinking fund.
The Pricing Supplement relating to each Note will also indicate whether
the Holder of such Note will have the option to elect repayment of such Note by
the Company prior to its Stated Maturity, and, if so, such Pricing Supplement
will specify the date or dates on which such Note may be repaid (each an
"Optional Repayment Date") and the price (the "Optional Repayment Price") at
which, together with accrued interest to such Optional Repayment Date, such Note
may be repaid on each such Optional Repayment Date.
In order for a Note to be repaid, the Paying Agent for such Note must
receive, at least 30 but not more than 45 days prior to an Optional Repayment
Date (i) such Note with the form entitled "Option to Elect Repayment" on the
reverse thereof duly completed, or (ii) a facsimile transmission or letter from
a member of a national securities exchange or the National Association of
Securities Dealers, Inc. or a commercial bank or trust company in the United
States setting forth the name of the Holder of such Note, the principal amount
of such Note to be repaid, the certificate number or a description of the tenor
and terms of such Note, a statement that the option to elect repayment is being
exercised thereby and a guarantee that the Note to be repaid with the form
entitled "Option to Elect Repayment" on the reverse of the Note duly completed
will be received by the Paying Agent not later than five Business Days after the
date of such facsimile transmission or letter and such Note and form duly
completed are received by the Paying Agent by such fifth Business Day. Any
tender of a Note by the Holder for repayment (except as specified in the
applicable Pricing Supplement) shall be irrevocable. The repayment option may be
exercised by the Holder of a Note for less than the entire principal amount of
such Note provided that the principal amount of such Note remaining outstanding
after repayment is an authorized denomination.
The Depositary's nominee will be the Holder of any Book-Entry Note and
therefore will be the only entity that can exercise a right to repayment. In
order to ensure that the Depositary's nominee will timely exercise a right to
repayment with respect to a particular Note, the beneficial owner of such Note
must instruct the broker or other direct or indirect participant through which
it holds an interest in such Note to notify the Depositary of its desire to
exercise a right to repayment. Different firms have different cut-off times for
accepting instructions from their customers and, accordingly, each beneficial
owner should consult the broker or other direct or indirect participant through
which it holds an interest in a Note in order to ascertain the cut-off time by
which such an instruction must be given in order for timely notice to be
delivered to the Depositary.
The Company may at any time purchase Notes or ownership interests in
Book-Entry Notes at any price in the open market or otherwise. Notes or
interests so purchased by the Company may, at the discretion of the Company, be
held or resold or retired.
Registration and Transfer
Notes will be exchangeable for other Notes containing identical terms
and provisions, in any authorized denominations, and of like aggregate principal
amount. (Section 305)
15
<PAGE>
The Company is required to keep or cause to be kept, at an office or
agency designated by it, a register (the "Security Register") in which, subject
to such reasonable regulations as it may prescribe, the Company shall provide
for the registration of the Notes and of transfers thereof. Notes may be
presented for exchange as provided above, and for registration of transfer, at
the office of the Security Registrar or at any office or agency designated by
the Company for such purpose with respect to the Notes. Every Note presented or
surrendered for registration of transfer, or for exchange or redemption, shall
(if so required by the Company or the Security Registrar) be duly endorsed, or
be accompanied by a written instrument of transfer in form satisfactory to the
Company and Security Registrar duly executed, by the Holder thereof or his
attorney duly authorized in writing. No service charge shall be made for any
registration of transfer or exchange or redemption of Notes, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or
exchange of any Note. The Company has initially appointed the Trustee as
Security Registrar under the Indenture. (Section 305) The Company may from time
to time designate one or more other offices or agencies where the Notes may be
presented or surrendered for such purposes and may from time to time rescind
such designations; provided that it continues to maintain such an office or
agency in each Place of Payment as required by the Indenture. (Section 1002)
The Company shall not be required (i) to issue, register the transfer
of or exchange any Note during a period beginning at the opening of business 15
days before the day of mailing of a notice of redemption of Notes selected for
redemption and ending at the close of business on the day of mailing, or (ii) to
register the transfer of or exchange any Note so selected for redemption in
whole or in part, except, in the case of any Note to be redeemed in part, the
portion thereof not to be redeemed. (Section 305)
Book-Entry System
Upon issuance, all Book-Entry Notes having the same Original Issue Date
and otherwise having identical terms will be represented by a global security.
If, however, the aggregate principal amount of any Book-Entry Note would exceed
$200 million, one certificate will be issued with respect to such $200 million
principal amount and an additional certificate will be issued with respect to
the remaining principal amount. Each global security representing Book-Entry
Notes will be deposited with, or on behalf of, the Depositary, and registered in
the name of a nominee of the Depositary. Book-Entry Notes will not be
exchangeable for Certificated Notes and, except under the circumstances
described below, will not otherwise be issuable in definitive form. The specific
terms of any depositary relationship with respect to the Notes, if other than as
described below, will be described in the applicable Pricing Supplement.
16
<PAGE>
The Depository Trust Company ("DTC"), New York, NY, will act as the
initial Depositary for the Notes.
DTC has advised the Company and the Agents that it is a limited-purpose
trust company organized under the New York Banking Law, a "banking organization"
within the meaning of the New York Banking Law, a member of the Federal Reserve
System, a "clearing corporation" within the meaning of the New York Uniform
Commercial Code, and a "clearing agency" registered pursuant to the provisions
of Section 17A of the Exchange Act. DTC holds securities that its participants
(the "Direct Participants") deposit with DTC. DTC also facilitates the
settlement among Direct Participants of securities transactions, such as
transfers and pledges, in deposited securities through electronic computerized
book-entry changes in participants' accounts, thereby eliminating the need for
physical movement of securities certificates. Direct Participants include
securities brokers and dealers, banks, trust companies, clearing corporations,
and certain other organizations. DTC is owned by a number of its Direct
Participants and by The New York Stock Exchange, Inc., the American Stock
Exchange, Inc., and the National Association of Securities Dealers, Inc. Access
to the DTC system is also available to others, such as securities brokers and
dealers, banks and trust companies that clear through or maintain a custodial
relationship with a Direct Participant, either directly or indirectly (the
"Indirect Participants" and together with the Direct Participants, the
"Participants"). The rules applicable to DTC and its Participants are on file
with the Commission.
Purchases of Notes under the DTC system must be made by or through
Direct Participants, which will receive a credit for the Notes on DTC's records.
The ownership interest of each actual purchaser of each Note ("Beneficial
Owner") is in turn to be recorded on the Direct and Indirect Participants'
respective records. Beneficial Owners will not receive written confirmation from
DTC of their purchase, but Beneficial Owners are expected to receive written
confirmations providing details of the transaction, as well as periodic
statements of their holdings, from the Direct or Indirect Participant through
which the Beneficial Owner entered into the transaction. Transfers of ownership
interests in the Notes are to be accomplished by entries made on the books of
Participants acting on behalf of Beneficial Owners. Beneficial Owners will not
receive certificates representing their ownership interests in Notes, except in
the event that use of the book-entry system for the Notes is discontinued.
To facilitate subsequent transfers, all Notes deposited by Participants
with DTC are registered in the name of DTC's partnership nominee, Cede & Co. The
deposit of Notes with DTC and their registration in the name of Cede & Co. do
not effect any change in beneficial ownership. DTC has no knowledge of the
actual Beneficial Owners of the Notes; DTC's records reflect only the identity
of the Direct Participants to whose accounts such Notes are credited, which may
or may not be the Beneficial Owners. The Participants will remain responsible
for keeping account of their holdings on behalf of their customers.
Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by Direct
Participants and Indirect Participants to Beneficial Owners will be governed by
arrangements among them, subject to any statutory or regulatory requirements as
may be in effect from time to time.
Redemption notices shall be sent to DTC. If less than all of the Notes
with the same issue date and otherwise having identical terms are being
redeemed, DTC's practice is to determine by lot the amount of the interest of
each Direct Participant in such Notes to be redeemed.
Neither DTC nor Cede & Co. will consent or vote with respect to Notes.
Under its usual procedures, DTC mails an Omnibus Proxy to the Participants as
soon as possible after the record date. The Omnibus Proxy assigns Cede & Co.'s
consenting or voting rights to those Direct Participants to whose accounts the
Notes are credited on the record date (identified in a listing attached to the
Omnibus Proxy).
17
<PAGE>
Principal and interest payments on the Notes will be made to Cede & Co.
DTC's practice is to credit Direct Participants' accounts on the payable date in
accordance with their respective holdings shown on DTC's records, unless DTC has
reason to believe that it will not receive payment on such payment date.
Payments by Participants to Beneficial Owners will be governed by standing
instructions and customary practices, as is the case with securities held for
the accounts of customers in bearer form or registered in "street name," and
will be the responsibility of such Participant and not of DTC, the Agents, or
the Company, subject to any statutory or regulatory requirements as may be in
effect from time to time. Payment of principal and interest to Cede & Co. is the
responsibility of the Company or the Paying Agent. Disbursement of such payments
to Direct Participants is the responsibility of DTC, and disbursement of such
payments to the Beneficial Owners is the responsibility of Direct and Indirect
Participants.
DTC may discontinue providing its services as securities depository
with respect to the Notes at any time by giving reasonable notice to the Company
or the Paying Agent. Under such circumstances, in the event that a successor
Note depositary is not obtained, Note certificates are required to be printed
and delivered.
The Company may decide to discontinue use of the system of book-entry
transfers through DTC (or a successor Note depositary). In that event, Note
certificates are required to be printed and delivered.
The information in this section concerning DTC and DTC's book-entry
system has been obtained from sources that the Company believes to be reliable,
but neither the Company nor any of the Agents takes any responsibility for the
accuracy thereof.
Neither the Company, the Trustee, the Paying Agent nor any Agent will
have any responsibility or obligation to the Depositary, any Participant in the
book-entry system or any Beneficial Owner with respect to (i) the accuracy of
any records maintained by the Depository or any Participant; (ii) the payment by
the Depository or any Participant of any amount due to any Beneficial Owner in
respect of the principal amount or purchase price or redemption price of, or
interest on, any Note; (iii) the delivery of any notice by the Depository or any
Participant; (iv) the selection of the Beneficial Owners to receive payment in
the event of any partial redemption of the Notes; or (v) any other action taken
by the Depository or any Participant.
Maintenance of Corporate Existence
The Indenture provides that, except in the case of certain sales,
leases or conveyances of assets, consolidations and mergers described
hereinafter under the caption "Consolidation, Merger, Sale or Conveyance," the
Company will maintain its corporate existence and that of SCE&G and GENCO and
the rights and franchises of the Company and SCE&G and GENCO; provided, however,
that the Company will not be required to preserve (a) the corporate existence of
any Subsidiary other than SCE&G and GENCO or (b) any such right or franchise if
the Company shall determine that the preservation thereof is no longer desirable
in the conduct of the business of the Company and its Subsidiaries considered as
a whole and that the loss thereof is not disadvantageous in any material respect
to the Holders of the Outstanding Securities of any series. (Sections 801 and
1006)
Restrictions on Liens
The Indenture provides that neither the Company nor any Subsidiary will issue,
assume or guarantee any notes, bonds, debentures or other similar evidences of
indebtedness for money borrowed ("Debt") secured by a mortgage, lien, pledge or
other encumbrance ("Mortgages") upon any property of the Company or any of its
Subsidiaries without effectively providing that the Debt Securities of each
series (together with, if the Company so determines, any other indebtedness or
obligation then existing or thereafter created ranking equally with the Debt
Securities) shall be secured equally and ratably with (or prior to) such Debt so
long as such Debt shall be so secured, except that this restriction will not
apply to: (a) Mortgages to secure Debt issued under (i) the Indenture, dated
April 1, 1993, between SCE&G and NationsBank, N.A., (ii) the Indenture of
Mortgage, dated January 1, 1945, between SCE&G and Chase Manhatten Bank, (iii)
the Mortgage and Security Agreement, dated August 21, 1992, between GENCO and
The Prudential Insurance Company of America and (iv) the Indenture of Mortgage,
dated December 1, 1977, between Pipeline Corporation and Citibank,
18
<PAGE>
N.A., each as amended and supplemented to date and as it may be hereafter
amended and supplemented from time to time ("Existing Mortgages") or any
extension, renewal, or replacement of any of them; (b) Mortgages affecting
property of a corporation existing at the time it becomes a Subsidiary or at the
time it is merged into or consolidated with the Company or a Subsidiary; (c)
Mortgages on property existing at the time of acquisition thereof or incurred to
secure payment of all or part of the purchase price thereof or to secure Debt
incurred prior to, at the time of, or within 12 months after the acquisition for
the purpose of financing all or part of the purchase price thereof; (d)
Mortgages on any property to secure all or part of the cost of improvements or
construction thereon or Debt incurred to provide funds for such purpose in a
principal amount not exceeding the cost of such improvements or construction;
(e) Mortgages which secure only indebtedness owing by a Subsidiary to the
Company or to a Subsidiary; (f) certain Mortgages to government entities,
including mortgages to secure debt incurred in pollution control or industrial
revenue bond financings; (g) Mortgages required by any contract or statute in
order to permit the Company or a Subsidiary to perform any contract or
subcontract made by it with or at the request of the United States of America,
any state or any department, agency or instrumentality or political subdivision
of either; (h) Mortgages to secure loans to the Company or any Subsidiary
maturing within 12 months from the creation thereof and made in the ordinary
course of business; (i) Mortgages on any property (including any natural gas,
oil or other mineral property) to secure all or part of the cost of exploration,
drilling or development thereof or to secure Debt incurred to provide funds for
any such purpose; (j) Mortgages existing on the date of the Indenture; (k)
"Excepted Encumbrances" and "Permitted Encumbrances" as such terms are defined
in any of the Existing Mortgages; (l) certain Mortgages typically incurred in
the ordinary course of business; and (m) any extension, renewal or replacement
of any Mortgage referred to in the foregoing clauses (b) through (l).
Notwithstanding the foregoing, the Company and any one or more Subsidiaries may,
without securing the Debt Securities, issue, assume or guarantee Debt secured by
Mortgages in an aggregate principal amount which (not including Debt permitted
to be secured under clauses (a) to (m) inclusive above) does not at any one time
exceed 10% of Consolidated Net Tangible Assets (as hereinafter defined) of the
Company and its consolidated Subsidiaries. (Section 1009)
"Consolidated Net Tangible Assets" is defined as the total amount of
assets appearing on the consolidated balance sheet of the Company and its
Subsidiaries less, without duplication, the following: (a) reserves for
depreciation and other asset valuation reserves but excluding reserves for
deferred federal income taxes; (b) intangible assets such as goodwill,
trademarks, trade names, patents and unamortized debt discount and expense; and
(c) appropriate adjustments on account of minority interests of other Persons
holding voting stock in any Subsidiary of the Company. (Section 101)
Events of Default
Unless otherwise set forth in an applicable Pricing Supplement, the
following constitute events of default under the Indenture with respect to Debt
Securities of any series: (1) default in the payment of principal of (and
premium, if any, on) any Debt Security of that series when due; (2) default in
the payment of interest or any other amount on any Debt Security of that series
when due and the continuation thereof for a period of 30 days; (3) default in
the deposit of any sinking fund payment when due and the continuation thereof
for a period of three business days; (4) default in the performance or breach of
any other covenant or warranty of the Company in the Indenture (other than a
covenant or warranty included in the Indenture solely for the benefit of one or
more series of debt securities other than the Debt Securities of that series),
and the continuation thereof for 60 days after written notice to the Company as
provided in the Indenture; (5) default in the payment of principal of or
interest on, or acceleration of, securities of any other series issued under the
Indenture or under any other bond, debenture, note or other evidence of
indebtedness of the Company, SCE&G or GENCO for borrowed money, in an aggregate
amount exceeding $10,000,000, and the continuation thereof for ten days after
written notice to the Company as provided in the Indenture; and (6) certain
events of bankruptcy, insolvency or reorganization. (Section 501)
If an event of default occurs and is continuing with respect to Debt
Securities of any series, either the Trustee or the Holders of at least 25% in
principal amount of the Outstanding Debt Securities of that series may declare
the principal amount of all Debt Securities of that series to be due and payable
immediately by written notice to the Company. At any time after the declaration
of acceleration with respect to the Debt Securities of any series has been made,
but before a judgment or decree based on acceleration has been obtained, the
Holders of a majority in principal amount of the Outstanding Debt Securities of
that series may, under certain circumstances, rescind and annul such
acceleration and its consequences. (Section 502)
19
<PAGE>
The Indenture provides that the Trustee generally will be under no obligation to
exercise any of its rights or powers under the Indenture at the request or
direction of any of the Holders, unless such Holders have offered to the Trustee
reasonable security or indemnity acceptable to the Trustee. The Holders of a
majority in principal amount of the Outstanding Debt Securities of any series
generally will have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or exercising any trust
or power conferred on the Trustee, with respect to the Debt Securities of that
series. The right of a Holder of any Debt Security or coupon to institute a
proceeding with respect to the Indenture is subject to certain conditions
precedent, but each Holder has an absolute right to receive payment of principal
(and premium, if any) and interest when due (subject, in the case of interest,
to certain limited exceptions) and to institute suit for the enforcement of any
such payment. The Indenture provides that the Trustee, within 90 days after the
occurrence of a default with respect to the Debt Securities of any series, is
required to give the Holders of the Debt Securities of such series notice of
such default, unless cured or waived, but, except in the case of default in the
payment of principal of (or premium, if any) or interest or other amount payable
on any Debt Security, the Trustee may withhold such notice if it determines that
it is in the interest of such Holders to do so. (Sections 507, 508, 512, 602 and
603)
Consolidation, Merger, Sale or Conveyance
The Indenture provides that the Company may, without the consent of the
Holders of the Debt Securities, consolidate with, or sell, lease or convey all
or substantially all of its assets to, or merge into another corporation,
provided (1) the Company is the continuing corporation, or, if the Company is
not the continuing corporation, the successor corporation assumes by a
supplemental indenture the Company's obligations under the Indenture and (2)
immediately after giving effect to such transaction there shall be no default in
the performance of any such obligations. (Section 801)
Modification, Waiver and Meetings
Modification and amendment of the Indenture may be effected by the
Company and the Trustee with the consent of the Holders of a majority in
principal amount of each series of Outstanding Debt Securities affected thereby,
provided that no such modification or amendment may, without the consent of the
Holder of each Outstanding Debt Security affected thereby, (1) change the Stated
Maturity or Redemption Date of the principal of, or any installment of interest
on, any Debt Security or reduce the principal amount thereof or the rate of
interest thereon or any other amount payable in respect thereof or any premium
payable on the redemption thereof; (2) reduce the principal amount of any Debt
Security which is an Original Issue Discount Security that would be due upon a
declaration of acceleration of the Maturity thereof; (3) change the place or
currency of any payment of principal of or any premium or interest on any Debt
Security; (4) impair the right to institute suit for the enforcement of any
payment on or with respect to any Debt Security after the Stated Maturity or
redemption date thereof; (5) reduce the percentage in principal amount of
Outstanding Debt Securities of any series for which the consent of the Holders
is required to modify or amend the Indenture or to waive compliance with certain
provisions of the Indenture, or reduce certain quorum or voting requirements of
the Indenture; or (6) modify the foregoing requirements or reduce the percentage
of Outstanding Debt Securities necessary to waive any past default. Modification
and amendment of the Indenture may be effected by the Company and the Trustee
without the consent of the Holders (a) to add to the covenants of the Company
for the benefit of the Holders or to surrender a right or power conferred on the
Company in the Indenture, (b) to secure the Debt Securities, (c) to establish
the form or terms of any series of Debt Securities, or (d) to make certain other
modifications, generally of a ministerial or immaterial nature. Except with
respect to certain fundamental provisions, the Holders of at least a majority in
principal amount of Outstanding Debt Securities of a series may waive past
defaults with respect to such series under the Indenture and may waive
compliance by the Company with certain provisions of the Indenture with respect
to such series. (Sections 513, 901, 902 and 1010)
20
<PAGE>
A meeting of the Holders of Debt Securities of a series may be called at any
time by the Trustee and also, upon request, by the Company or the Holders of at
least 10% in principal amount of the Outstanding Debt Securities of such series,
in any such case upon notice given in accordance with "Notices" below. (Section
1402) Any resolution passed or decision taken at any meeting of Holders of Debt
Securities of any series duly held in accordance with the Indenture will be
binding on all Holders of Debt Securities of that series. The quorum at any
meeting called to adopt a resolution, and at any reconvened meeting, will be
persons holding or representing a majority in principal amount of the
Outstanding Debt Securities of a series. (Section 1404)
Notices
Notices to Holders of the Notes will be given by mail to the addresses of
such Holders as they appear in the Securities Register. (Section 106)
Evidence of Compliance
The Company is required under the Trust Indenture Act to furnish the
Trustee not less often than annually a certificate as to the Company's
compliance with the conditions and covenants under the Indenture.
Defeasance
With respect to Debt Securities of any series, the Company will be
discharged from any and all obligations in respect of the Debt Securities of
such series (except for certain obligations to register the transfer or exchange
of Debt Securities of such series, maintain paying agencies, and hold moneys for
payment in trust) if the Company deposits with the Trustee, in trust, money or
Federal Securities which through the payment of interest thereon and principal
thereof in accordance with their terms will provide money in an amount
sufficient to pay all the principal (including any mandatory sinking fund
payments) of, premium, if any, and interest on, the Debt Securities of such
series on the dates such payments are due in accordance with the terms of such
Debt Securities. (Section 401)
PLAN OF DISTRIBUTION
The Notes are being offered on a continuous basis by the Company
through the Agents, each of which has agreed to use its reasonable efforts to
solicit offers to purchase Notes. Initial purchasers may propose certain terms
of the Notes, but the Company will have the sole right to accept offers to
purchase Notes and may reject proposed purchases in whole or in part. Each Agent
shall have the right, in its discretion reasonably exercised and without notice
to the Company, to reject any proposed purchase of Notes in whole or in part.
The Company will pay a commission to each Agent, in the form of a discount,
ranging from .125% to .750%, depending upon the Stated Maturity of the Note, of
the principal amount of any Note sold through such Agent. The Company may
arrange for Notes to be sold through each Agent acting as underwriter or may
sell Notes directly to investors on its own behalf or through other agents. In
the case of sales made directly by the Company, no commission will be paid. The
name of any such other agent and any applicable commission or discount will be
set forth in the applicable Pricing Supplement. The Company also may sell Notes
to each Agent as principal for its own account at a price to be agreed upon at
the time of sale. Such Notes may be resold to one or more investors and other
purchasers at varying prices related to prevailing market prices at the time of
resale or, if so agreed, at a fixed initial public offering price, to be
determined by such Agent. An Agent may resell Notes purchased as principal to
broker-dealer(s) for resale to the public. Any concessions allowed by an Agent
to any such broker-dealer(s) shall not be in excess of the commission or
discount received by the Agent from the Company. The Company has agreed to
reimburse the Agents for certain expenses.
No Note will have an established trading market when issued. Unless
otherwise specified in the applicable Pricing Supplement, the Notes will not be
listed on any securities exchange. Each Agent may make a market in the Notes,
but such Agent is not obligated to do so and may discontinue any market-making
at any time without notice. There can be no assurance of a secondary market for
any Notes, or that all of the Notes offered will be sold.
21
<PAGE>
Each Agent, whether acting as agent or principal, may be deemed to be an
"underwriter" within the meaning of the Securities Act of 1933, as amended, (the
"Securities Act"). The Company has agreed to indemnify each Agent against
certain liabilities, including liabilities under the Securities Act, or to
contribute to payments that such Agent may be required to make in respect
thereof.
In connection with certain types of offers and sales of the Notes, the
Agents may purchase and sell Notes in the open market. These transactions may
include over-allotment and stabilizing transactions and purchases to cover
syndicate short positions created in connection with such offering. Stabilizing
transactions consist of certain bids or purchases for the purpose of preventing
or retarding a decline in the market price of the Notes; and syndicate short
positions involve the sale by the Agents of a greater principal amount of Notes
than they are required to purchase from the Company. The Agents also may impose
a penalty bid, whereby selling concessions allowed to syndicate members or other
broker-dealers in respect of the Notes sold for their account may be reclaimed
by the syndicate if such Notes are repurchased by the syndicate in stabilizing
or covering transactions. These activities may stabilize, maintain or otherwise
affect the market price of the Notes, which may be higher than the price that
might otherwise prevail in the open market; and these activities, if commenced,
may be discontinued at any time.
22
<PAGE>
LEGAL OPINIONS
Certain legal matters in connection with the sale of the Notes are being
passed upon for the Company by the McNair Law Firm, P.A., Columbia, South
Carolina and by H. T. Arthur, II, Esq. of Columbia, South Carolina, who is
Senior Vice President and General Counsel, Assistant Secretary and a full-time
employee of the Company. The legality of the Notes will be passed upon for any
underwriters, dealers or agents by Thelen Reid & Priest LLP, New York, New York.
Thelen Reid & Priest LLP will rely on the opinion of H.T. Arthur, II, Esq. with
respect to matters of South Carolina law.
At September 15, 1998 H. T. Arthur, II, Esq. owned beneficially 7,046
shares of the Company's Common Stock, including shares acquired by the trustee
under its Stock Purchase-Savings Plan by use of contributions made by Mr. Arthur
and earnings thereon, and including shares purchased by the trustee by use of
Company contributions and earnings thereon. From time to time, Thelen Reid &
Priest LLP has represented the Company and its subsidiaries with respect to
matters unrelated to the offering of the Notes.
EXPERTS
The consolidated financial statements incorporated in this Prospectus by
reference from the Company's Annual Report on Form 10-K for the year ended
December 31, 1997, have been audited by Deloitte & Touche LLP, independent
auditors, as stated in their report, and have been incorporated herein by
reference and have been so incorporated in reliance upon the report of such firm
given upon their authority as experts in accounting and auditing.
23
<PAGE>
No person has been authorized to give $200,000,000
any information or to make any representations
in connection with this offering other
than those contained in this Prospectus
and the accompanying Pricing Supplement,
and if given or made, such other information SCANA CORPORATION
and representations must not be relied upon
as having been authorized by the Company
or the Agents. Neither the delivery of
this Prospectus and the accompanying
Pricing Supplement nor any sale made
thereunder shall, under any
circumstances, create any implication
that there has been no change in the affairs
of the Company since the date hereof or thereof
or that the information contained herein or
therein is correct as of any time subsequent
to its date. This Prospectus and the
accompanying Pricing Supplement do not
constitute an offer to sell or a solicitation
of any offer to buy any securities other than Medium-Term Notes,
the registered securities to which
they relate. This Prospectus and
the accompanying Pricing
Supplement do not constitute an offer to sell
or a solicitation of an offer to buy such Due From Nine Months
securities in any circumstances in which such to Thirty Years
offer or solicitation is unlawful. From Date of Issue
TABLE OF CONTENTS
Page SCANA
Prospectus
Available Information............... 3 Prospectus
Incorporation of Certain
Documents by Reference............ 3
----------------
The Company......................... 5
Summary Consolidated Financial
and Operating Information......... 5
Ratio of Earnings to Fixed Charges.. 6
Use of Proceeds..................... 6 PaineWebber Incorporated
Description of the Credit Suisse First Boston
Medium-Term Notes................. 6 NationsBanc Montgomery Securities LLC
Plan of Distribution................ 18
Legal Opinions...................... 18 October , 1998
Experts............................. 18
24
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
Securities and Exchange Commission filing fee......... $59,000
Printing Expenses..................................... 20,000#
Blue Sky and Legal fees............................... 80,000#
Accounting services................................... 20,000#
Miscellaneous......................................... 15,000#
-------
Total................................................. $194,000#
# Estimated
Item 15. Indemnification of Directors and Officers
The South Carolina Business Corporation Act of 1988 permits, and the
Registrant's By-Laws require, indemnification of the Registrant's directors and
officers in a variety of circumstances, which may include indemnification for
liabilities under the Securities Act of 1933, as amended (the "Securities Act").
Under Sections 33-8-510, 33-8-550 and 33-8-560 of the South Carolina Business
Corporation Act of 1988, a South Carolina corporation is authorized generally to
indemnify its directors and officers in civil or criminal actions if they acted
in good faith and, in the case of civil actions, reasonably believed their
conduct to be in the best interests of the corporation and, in the case of
criminal actions, had no reasonable cause to believe that the conduct was
unlawful. The Registrant's By-Laws require indemnification of directors and
officers with respect to expenses actually and necessarily incurred by them in
connection with the defense or settlement of any action, suit or proceeding in
which they are made parties by reason of having been a director or officer,
except in relation to matters as to which they shall be adjudged to be liable
for willful misconduct in the performance of duty and to such matters as shall
be settled by agreement predicated on the existence of such liability. In
addition, the Registrant carries insurance on behalf of directors, officers,
employees or agents that may cover liabilities under the Securities Act. The
Registrant's Restated Articles of Incorporation provide that no director of the
Registrant shall be liable to the Registrant or its shareholders for monetary
damages for breach of his fiduciary duty as a director occurring after April 26,
1989, except for (i) any breach of the director's duty of loyalty to the
Registrant or its shareholders, (ii) acts or omissions not in good faith or
which involve gross negligence, intentional misconduct or a knowing violation of
law, (iii) certain unlawful distributions or (iv) any transaction from which the
director derived an improper personal benefit.
Item 16. Exhibits
Exhibits required to be filed with this Registration Statement are
listed in the following Exhibit Index. Certain of such exhibits which have
heretofore been filed with the Securities and Exchange Commission and which are
designated by reference to their exhibit numbers in prior filings are hereby
incorporated herein by reference and made a part hereof.
Item 17. Undertakings
The undersigned Registrant hereby undertakes:
(1)......To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement to include any
material information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to such
information in the registration statement.
(2)......That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
25
<PAGE>
(3)......To remove from registration by means of a post-effective amendment
any of the securities being registered whichremain unsold at the termination of
the offering.
(4)......That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the Registrant's annual report pursuant
to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
26
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3, except for the assignment of a
security rating pursuant to transaction requirement B-2 of Form S-3, which
requirement the registrant reasonably believes will be met at the time of
effectiveness, and has duly caused this registration statement or amendment
thereto to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Columbia, State of South Carolina, on September 30,
1998.
(REGISTRANT)...... SCANA Corporation
By: /s/W.B. Timmerman
(Name & Title):... W.B. Timmerman., Chairman of the Board, Chief
Executive Officer, President and Director
Pursuant to the requirements of the Securities Act of 1933, this
registration statement or amendment thereto has been signed by the following
persons in the capacities and on the dates indicated.
(i) Principal executive officer:
By: ......... /s/W.B. Timmerman
(Name & Title):... W.B. Timmerman, Chairman of the Board, Chief
Executive Officer, President and Director
Date: ......... September 30, 1998
(ii) Principal financial and accounting officer:
By: ......... /s/K.B. Marsh
(Name & Title):... K. B. Marsh, Senior Vice President, Chief
Financial Officer and Controller
Date: September 30, 1998
(iii) Other Directors:
* B. L. Amick; J.A. Bennett, W. B. Bookhart, Jr.; W. T. Cassels, Jr.; H. M.
Chapman; E. T. Freeman; L.M. Gressette, Jr., W. H. Hipp; L.M. Miller, F. C.
McMaster; J. B. Rhodes; M.K. Sloan, W.B. Timmerman
* Signed on behalf of each of these persons:
/s/K. B. Marsh
K.B. Marsh
(Attorney-in-Fact)
27
<PAGE>
SCANA CORPORATION
EXHIBIT INDEX
......... Sequentially
Numbered
Number Pages
1. Underwriting Agreement
Form of Selling Agency Agreement (Filed herewith)........ 27
2. Plan of acquisition, reorganization, arrangement,
liquidation or succession
Not applicable
4. Instruments defining the rights of security
holders, including indentures
A. Indenture, dated as of November 1, 1989
between the Registrant and The Bank of
New York, as Trustee (Filed as Exhibit 4-A
to Registration Statement No. 33-32107)............... #
5. Opinion re legality
Opinion of H. Thomas Arthur, Esq. (Filed herewith)...... 81
8. Opinion re tax matters
Not Applicable
12. Statement Re Computation of Ratios (Filed herewith)..... 82
15. Letter re unaudited interim financial information
Not Applicable
23. Consents Of Experts and Counsel
A. Consent of Deloitte & Touche LLP (Filed herewith).... 83
B. Consent of H. Thomas Arthur (Included in his
opinion filed as Exhibit 5)
24. Power Of Attorney
(Filed herewith)........................................ 84
25. Statement of eligibility of trustee
Statement of eligibility of The Bank of
New York, as Trustee (Form T-1) (Filed herewith)....... 85
26. Invitation for competitive bids
Not applicable
27. Financial Data Schedule
Not Applicable
99. Additional Exhibits
Not Applicable
# Incorporated herein by reference as indicated.
28
<PAGE>
SCANA Corporation
$200,000,000 Medium-Term Notes
Due From Nine Months to Thirty Years
From Date of Issue
PaineWebber Incorporated
Capital Markets - 11th Floor
1285 Avenue of the Americas
New York, NY 10019
Credit Suisse First Boston Corporation
Eleven Madison Avenue
New York, NY 10010
NationsBanc Montgomery Securities LLC
NationsBank Corporate Center
100 North Tryon Street; NC1-007-07-01
Charlotte, NC 28255
Selling Agency Agreement
____________ __, 1998
New York, New York
Dear Sirs:
SCANA Corporation, a South Carolina corporation (the "Company"),
confirms its agreement with each of you with respect to the issue and sale by
the Company of up to $200,000,000 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 in bearer form in multiples of $5,000, 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 only be
amended 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 (h) hereof.
(a) The Company meets the requirements for use of Form S-3
under the Securities Act of 1933 (the "Act") and has filed with the Securities
and Exchange Commission (the "Commission") registration statement on such Form
(File Number: 333-65105), including a prospectus (the "Prospectus"), which a
registration statement has become effective, for the registration under the Act
of $200,000,000 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(h)), on
the Effective Date (as defined by Section 1(h)), when any supplement to the
Prospectus is filed with the Commission, as of the date of any Terms Agreement
(as defined by Section 2(b)) 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(h)), 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 (the "Trust Indenture Act") and the Securities
29
<PAGE>
Exchange Act of 1934 (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 time any Notes are issued and sold hereunder,
the Indenture will constitute a legal, valid and binding instrument enforceable
against the Company in accordance with its terms 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.
(d) Each of the Company, South Carolina Electric & Gas
Company, South Carolina Pipeline Corporation and South Carolina Generating
Company, Inc. (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, but is
exempt from registration as such under such Act; and the Company is not subject
to registration under the Investment Company Act of 1940, as amended.
(h) The terms which follow, when used in this Agreement, shall
have the meanings indicated. The term "the Effective Date" shall mean the date
that Registration Statement No. 333-65105 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.
30
<PAGE>
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 to 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 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.
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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.
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(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.
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(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:
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(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 an 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;
(v) the Company is a public utility holding company
within the meaning of the Public Utility Holding Company Act
of 1935, as amended, but is exempt from registration as such
under such Act; and the Company is not subject to registration
under the Investment Company Act of 1940, as amended;
(vi) to the best knowledge of such counsel, there is
no pending or threatened action, suit or proceeding before any
court or governmental agency, authority or body or any
arbitrator involving the Company or any of its subsidiaries,
of a character required to be disclosed in the Registration
Statement which is not adequately disclosed in the Prospectus,
and there is no franchise, contract or other document of a
character required to be described in the Registration
Statement or Prospectus, or to be filed as an exhibit, which
is not described or filed as required; and the statements
included or incorporated in the Prospectus describing any
legal proceedings or material contracts or agreements relating
to the Company fairly summarize such matters;
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(vii) the Registration Statement has become effective under
the Act; any required filing of the Prospectus, and any
supplements thereto, pursuant to Rule 424(b) has been made in
the manner and within the time period required by Rule 424(b);
to the best knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has
been issued, no proceedings for that purpose have been
instituted or threatened, and the Registration Statement 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
"Description of Medium-Term Notes - Book Entry System" in the
Prospectus or as to the Trustee's Statement of Eligibility on
Form T-1);
(viii) this Agreement has been duly authorized,
executed and delivered by the Company;
(ix) 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;
(x) 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
(xi) 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 McNair Law Firm, P.A., counsel for the Company, dated the Execution Time, to
the effect that:
(i) each of the Company and its Subsidiaries has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction in which it is
chartered or organized, with full corporate power and
authority to own its properties and conduct its business as
described in the Prospectus;
(ii) the Company's authorized equity capitalization is as set forth
in the Registration Statement; and the Notes conform to the
description thereof contained in the Prospectus (subject to
the insertion in the Notes of the maturity dates, the interest
rates and other similar terms thereof which will be described
in supplements to the Prospectus as contemplated by the third
sentence of Section 1(a) of this Agreement);
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(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 "Description of Medium-Term Notes - 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 Public Utility Holding Company Act of 1935, as
amended, but is exempt from registration as such under such
Act; and the Company is not subject to registration under the
Investment Company Act of 1940, as amended;
(vi) this Agreement has been duly authorized, executed and delivered by the
Company; and
(vii) 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 Thelen Reid & Priest
LLP, New York, New York, counsel for the Agents, such opinion or opinions, dated
the Execution Time, with respect to the issuance and sale of the Notes, 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.
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(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;
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(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 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.
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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 Thelen Reid & Priest LLP, counsel for the Agents, at
40 West 57th Street, New York, New York 20019, 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 McNair Law Firm, P.A., counsel for
the Company, dated as of the Closing Date, to the effect set forth in Section
5(c), (iii) the opinion of the General Counsel, or an Associate General Counsel
for the Company designated by its General Counsel, dated as of the Closing Date,
to the effect set forth in Section 5(b), (iv) the opinion of Thelen Reid &
Priest LLP, counsel for the Purchaser, dated as of the Closing Date, to the
effect set forth in Section 5(d), and (v) a letter of Deloitte & Touche LLP,
independent accountants for the Company, dated as of the Closing Date, to the
effect set forth in Section 5(f).
(c) Prior to the Closing Date, the Company shall have
furnished to the Purchaser such further information, certificates and documents
as the Purchaser may reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement
and any Terms Agreement, or if any of the opinions and certificates mentioned
above or elsewhere in this Agreement or such Terms Agreement shall not be in all
material respects reasonably satisfactory in form and substance to the Purchaser
and its counsel, such Terms Agreement and all obligations of the Purchaser
thereunder and with respect to the Notes subject thereto may be canceled at, or
at any time prior to, the respective Closing Date by the Purchaser. Notice of
such cancellation shall be given to the Company in writing or by telephone or
telegraph confirmed in writing.
7. Right of Person Who Agreed to Purchase to Refuse to Purchase.
(a) The Company agrees that any person who has agreed to
purchase and pay for any Note, including a Purchaser and any person who
purchases pursuant to a solicitation by any of the Agents, shall have the right
to refuse to purchase such Note if, at the Closing Date therefor, any condition
set forth in Section 5 or 6, as applicable, shall not be satisfied in all
material respects.
(b) The Company agrees that any person who has agreed to
purchase and pay for any Note pursuant to a solicitation by any of the Agents
shall have the right to refuse to purchase such Note if, subsequent to the
agreement to purchase such Note, any change, condition or development specified
in any of the Sections 9 (b) (i) through (v) shall have occurred (without regard
to any judgment of a Purchaser required therein) the effect of which is, in the
judgment of the Agent which presented the offer to purchase such Note, so
material and adverse as to make it impractical or inadvisable to proceed with
the delivery of such Note (it being understood that under no circumstance shall
any such Agent have any duty or obligation to exercise the judgment permitted to
be exercised under this Section 7(b) and Section 9(b)).
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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 last
paragraph of the cover page of the Prospectus and 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
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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 paragraph
of Section 2(a), Section 4(h), Section 8 and Section 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.)
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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 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 1426 Main Street, Columbia, South Carolina 29201, attention
of the General Counsel.
12. Successors.
This Agreement will inure to the benefit of and be binding upon the
parties hereto and their respective successors, directors, officers, employees,
agents and controlling persons and controlling persons referred to in Section 8
hereof, and, to the extent provided in Section 7, any person who has agreed to
purchase Notes, and no other person will have any right or obligation hereunder.
13. Applicable Law.
This Agreement will be governed by and construed in accordance with the
laws of the State of New York.
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.
PaineWebber Incorporated
By:
Its:
Credit Suisse First Boston Corporation
By:
Its:
NationsBanc Montgomery Securities LLC
By:
Its:
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SCHEDULE I
The Company agrees to pay each Agent a commission equal to the
following percentage of the principal amount of each Note sold by such Agent:
Maturity Range of Notes amount Percentage of Principal
From 9 months to less than 1 year .125%
From 1 year to less than 18 months .150%
From 18 months to less than 2 years .200%
From 2 years to less than 3 years .250%
From 3 years to less than 4 years .350%
From 4 years to less than 5 years .450%
From 5 years to less than 6 years .500%
From 6 years to less than 7 years .550%
From 7 years to less than 10 years .600%
From 10 years to less than 15 years .625%
From 15 years to less than 20 years .700%
From 20 years up to and including 30 years .750%
The fee for maturities other than those specified above shall be determined by
interpolation between such specified maturities on a pro rata monthly basis.
Address for Notice to you:
Notices to PaineWebber Incorporated shall be directed to it at Capital Markets
- - 11th Floor, 1285 Avenue of the Americas, New York, NY 10019.
Notices to Credit Suisse First Boston Corporation shall be directed to it at
Eleven Madison Avenue, New York, NY 10010.
Notices to NationsBanc Montgomery Securities LLC shall be directed to it at
NationsBank Corporate Center, 100 North Tryon Street; NC1-007-07-01, Charlotte,
North Carolina 28255.
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