Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
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)
57-0248695
(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 and General Counsel
SCANA Corporation
1426 Main Street
Columbia, South Carolina 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. J. Michael Parish, Esq.
McNair Law Firm, P.A. Thelen Reid & Priest LLP
1301 Gervais Street - 17th Floor 40 West 57th Street Columbia, SC 29201
New York, NY 10019
(803) 799-9800 (212) 603-2154
Approximate date of commencement of proposed sale to the public: After the
effective date of this 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. [ ]
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 maximum maximum
class of securities offering aggregate Amount of
to be registered price offering registration
Amount to per unit* price* fee
be registered
Medium Term Notes $1,000,000,000 100% $1,000,000,000 $264,000
* Estimated 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.
<PAGE>
The information in this prospectus is not complete and may be changed.
We may not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION DATED ____________ ___, 1999.
PROSPECTUS
$1,000,000,000
SCANA Corporation
Medium Term Notes
Due from Nine Months to
Thirty Years from Date of Issue
SCANA Corporation
1426 Main Street
Columbia, South Carolina 29201
(803) 217-9000
Internet Address: http://www.scana.com
The terms for each Note that are not specified in this prospectus will
be included in pricing supplements to this prospectus. We will receive between
$998,500,000 and $992,500,000 of the proceeds from the sale of the Notes, after
paying the agents' commissions of between $1,500,000 and $7,500,000. We may sell
the Notes at one or more times. Some or all of the following terms will apply to
the Notes: o Mature nine months or more from date of issue o Priced at 100% of
face value, unless otherwise specified o Fixed or floating interest rate. The
floating interest rate formula may be based on: o Commercial paper rate o LIBOR
rate o Treasury rate o Any other base rate specified in a pricing supplement o
Interest paid on fixed rate Notes on April 1 and October 1 o Interest paid on
floating rate Notes monthly, quarterly, semi-annually, annually or as otherwise
specified in a pricing supplement
o Issued in book-entry form except under circumstances described in this
prospectus o Subject to redemption and repurchase at option of the holder or at
our option o Minimum denominations of $1,000, increased in multiples of $1,000
We urge you to carefully read this prospectus and the applicable pricing
supplement, which will describe the specific terms of the offering, before you
make your investment decision.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
accuracy or adequacy of this prospectus or any pricing supplement. Any
representation to the contrary is a criminal offense.
PaineWebber Incorporated
Credit Suisse First Boston
Banc of America Securities LLC
The date of this prospectus is___________ ___, 1999.
<PAGE>
Table of Contents
Page
About this Prospectus.......................................
Where You Can Find More Information.........................
SCANA Corporation...........................................
Summary Consolidated Financial and Operating Information....
Ratio of Earnings to Fixed Charges..........................
Use of Proceeds.............................................
Description of the Notes....................................
Book-Entry System...........................................
Plan of Distribution........................................
Experts.....................................................
Validity of the Notes.......................................
Glossary....................................................
<PAGE>
About This Prospectus
This prospectus is part of a registration statement that we filed with
the Securities and Exchange Commission utilizing a "shelf" registration process.
Under this shelf registration process, we may sell any or all of the Notes
described in this prospectus in one or more offerings up to a total dollar
amount of $1,000,000,000. This prospectus provides you with a general
description of the Notes. Each time we sell Notes, we will provide a pricing
supplement that will contain specific information about the terms of that
offering. The pricing supplement may also add, update or change information
contained in this prospectus. You should read both this prospectus and the
relevant pricing supplement, together with the additional information described
under the heading "Where You Can Find More Information."
Where You Can Find More Information
We file annual, quarterly and special reports, proxy statements and
other information with the SEC. Our SEC filings are available to the public over
the Internet at the SEC's web site at http://www.sec.gov. You may also read and
copy any document we file with the SEC at the SEC's public reference room at 450
Fifth Street, N.W., Washington, D.C. 20549. Please call the SEC at
1-800-SEC-0330 for further information on the operation of the public reference
room. Because we have preferred stock which is listed on the New York Stock
Exchange, you may also read our SEC filings at the Stock Exchange offices at 20
Broad Street, New York, New York 10005. The information on our website is not a
part of this prospectus.
This prospectus does not repeat important information that you can find
elsewhere in the registration statement and in the reports and other documents
which we file with the SEC under the Securities Exchange Act of 1934. The SEC
allows us to "incorporate by reference" the information we file with it, which
means that we can disclose important information to you by referring you to
those documents. The information incorporated by reference is an important part
of this prospectus, and information that we file later with the SEC will
automatically update and supersede that information. We incorporate by reference
our Annual Report on Form 10-K, as amended, for the year ended December 31,
1998, our Quarterly Reports on Form 10-Q for the quarters ended March 31 and
June 30, 1999, our Current Report on Form 8-K dated February 16, 1999, and all
future filings made with the SEC under Sections 13(a), 13(c), 14, or 15(d) of
the Exchange Act until we sell all of the Notes.
We are not required to, and do not, provide annual reports to holders
of our debt securities unless specifically requested by a holder.
You may request a copy of our SEC filings at no cost by writing or
telephoning us at the following address:
H. John Winn, III
Manager - Investor Relations and Shareholder Services
SCANA Corporation
Columbia, South Carolina 29218
(803) 217-9240
You may obtain more information by contacting our Internet website, at
http://www.scana.com.
You should rely only on the information we incorporate by reference or
provide in this prospectus or any pricing supplement. We have not authorized
anyone else to provide you with different information. We are not making an
offer of these securities in any state where the offer is not permitted. You
should not assume that the information in this prospectus or any pricing
supplement is accurate as of any date other than the date on the front of those
documents.
SCANA Corporation
We are an energy-based holding company which, through our subsidiaries,
engages principally in electric and natural gas utility operations and other
energy-related businesses. We are a South Carolina corporation with general
business powers, and we were incorporated on October 10, 1984. We are a public
utility holding company within the meaning of the Public Utility Holding Company
Act of 1935, as amended. We are presently exempt from registration under this
Act, but upon our acquisition, through merger, of Public Service Company of
North Carolina, Incorporated ("PSNC"), we will become subject to registration.
PSNC is a public utility that transports, distributes and sells natural
gas to approximately 334,000 residential, commercial and industrial customers in
North Carolina. PSNC was incorporated as a North Carolina corporation in 1938.
It maintains its corporate office at 400 Cox Road, P.O. Box 1398, Gastonia,
North Carolina, telephone number (704) 864-6731.
Our principal executive offices are located at 1426 Main Street,
Columbia, South Carolina 29201, telephone (803) 217-9000, and our mailing
address is Columbia, South Carolina 29218.
Regulated Businesses
Our regulated subsidiaries, including South Carolina Electric & Gas
Company ("SCE&G"), South Carolina Generating Company, Inc. ("GENCO") and South
Carolina Pipeline Corporation ("Pipeline Corporation") (1) generate, transmit,
distribute and sell electricity, (2) purchase, transmit, distribute and sell at
wholesale and retail natural gas and (3) provide urban bus service, in various
areas of South Carolina. Our regulated subsidiaries own most of our consolidated
assets and, in 1998, contributed most of our consolidated net income.
Nonregulated Businesses
Our non-regulated subsidiaries (1) market natural gas and light
hydrocarbons, (2) provide fiber optic, video and radio communications, (3)
invest in telecommunications companies, (4) provide energy and security-related
products and services to residential customers, and (5) manage and maintain
power plants. In September, 1999, we agreed to sell all of our subsidiaries
which produce, store, distribute and sell propane. We expect this sale to be
completed before the end of 1999.
The information above concerning SCANA Corporation and its subsidiaries
is only a summary and does not purpose to be comprehensive. For additional
information concerning SCANA Corporation and its subsidiaries, you should refer
to the information described in "Where You Can Find More Information."
Summary Consolidated Financial and Operating Information
(Millions of Dollars Except Per Share Amounts)
(Unaudited)
Six Months Ended Twelve Months Ended
June 30, December 31,
1999 1998 1998 1997 1996
Statement of Income Data
Operating Revenues:
Electric.................... $559 $569 $1,220 $1,103 $1,107
Gas......................... 212 224 411 419 403
Transit..................... 1 1 1 1 3
--- --- ----- ----- -----
Total Operating Revenues... 772 794 1,632 1,523 1,513
Operating Expenses............ 628 629 1,287 1,209 1,199
--- --- ----- ----- -----
Operating Income.............. 144 165 345 314 314
Other Income.................. (8) 6 13 38 29
---- ---- ----- ---- ----
Net Income.................... $61 $106 $223 $221 $215
=== ==== ==== ==== ====
Earnings per Weighted Average
Common Share................ $.59 $1.00 $2.12 $2.06 $2.05
Dividends Declared Per Common
Share....................... $.77 $.77 $1.54 $1.51 $1.47
Weighted Average Common Shares
Outstanding (Millions)...... 103.6 106.8 105.3 107.1 105.1
Electric Territorial Sales
(Gigawatt Hours)............ 9,282 9,135 19,731 17,968 18,010
Ratio of Earnings to Fixed Charges
Our historical ratios of earnings to fixed charges are as follows:
Twelve Months Year Ended December 31,
Ended September 30, 1999 1998 1997 1996 1995 1994
- ------------------------ ---- ---- ---- ---- ----
2.80 3.67 3.64 3.60 3.00 2.55
For purposes of this ratio, earnings represent net income plus income taxes and
fixed charges. Fixed charges represent interest charges and the estimated
interest portion of annual rentals.
Use of Proceeds
We expect to use the proceeds from the sale of the Notes to provide all
or a portion of the cash required to satisfy our obligation to purchase shares
of common stock of SCANA and PSNC in connection with the acquisition, through
merger, of PSNC, to refinance indebtedness incurred for such purpose, to
refinance $150,000,000 principal amount money market notes maturing July 14,
2000, and for other general corporate purposes.
The Agreement and Plan of Merger under which we expect to acquire PSNC
provides that the sum of $700,000,000 will be used to purchase shares of common
stock of SCANA and PSNC in connection with the merger. To the extent we do not
fund this cash requirement with proceeds of the Notes, we will use bank
borrowings and other privately sold indebtedness which we may refinance with
proceeds of the Notes.
Description of the Notes
General
We will issue the Notes under an Indenture dated as of November 1, 1989
between us and The Bank of New York, as 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. This prospectus briefly outlines some of the
provisions of the Indenture. If you would like more information on those
provisions, please review the Indenture that we filed with the SEC. See "Where
You Can Find More Information" on how to obtain a copy of the Indenture. You may
also review the Indenture at the Trustee's offices at 101 Barclay Street, New
York, New York.
Capitalized terms used under this heading which are not otherwise
defined in this prospectus have the meanings given those terms in the Indenture.
The summaries under this heading are not detailed. Whenever particular
provisions of the Indenture or terms defined in the Indenture are referred to,
those statements are qualified by reference to the Indenture. References to
article and section numbers under this heading, unless otherwise indicated, are
references to article and section numbers of the Indenture.
The Notes and all other debt securities issued under the Indenture will
be unsecured and will in all respects be equally and ratably entitled to the
benefits of the Indenture, without preference, priority or distinction, and will
rank pari passu with all other unsecured and unsubordinated indebtedness of the
Company.
While the Indenture does not limit the amount of debt securities that
can be issued thereunder, we will not offer more than $1,000,000,000 aggregate
principal amount of the Notes pursuant to this prospectus.
Each pricing supplement which accompanies this prospectus will set
forth the following information to describe the Notes related to that pricing
supplement, unless the information is the same as the information included under
the captions "Payment of Notes," "Redemption" and "Transfers and Exchanges of
Notes" in this prospectus:
o any limit upon the aggregate principal amount of the Notes;
o the date or dates on which the principal of the Notes will be payable;
o the rate or rates at which the Notes will bear interest, if any
(or the method of calculating the rate); the date or dates from
which the interest will accrue; the dates on which the interest
will be payable ("Interest Payment Dates"); and the record dates
for the interest payable on the Interest Payment Dates;
o any option on our part to redeem the Notes and redemption terms and
conditions;
o any obligation on our part to redeem or purchase the Notes
pursuant to any sinking fund or analogous provisions or at the
option of the holder and the relevant terms and conditions for
that redemption or purchase;
o the denominations of the Notes;
o whether the Notes are subject to a book-entry system of transfers and
payments; and
o any other particular terms of the Notes and of their offering.
(Section 301)
Payment of Notes
We will pay any interest due on each Note to the person in whose name
that Note is registered as of the close of business on the record date relating
to each Interest Payment Date. However, we will pay interest when the Notes
mature (whether the Notes mature on their stated date of maturity, the date the
Notes are redeemed or otherwise) to the person to whom the principal payment on
the Notes is paid. If there is a default in the payment of interest on the
Notes, we may either (1) choose a special record date and pay the holders of the
Notes at the close of business on that date, or (2) pay the holders of the Notes
in any other lawful manner.
We will pay principal of, any premium and interest due on, the Notes at
maturity or upon earlier redemption or repayment of a Note upon surrender of
that Note at the office of the paying agent (currently, the Trustee in New York,
New York). (Sections 307 and 1105) The applicable pricing supplement identifies
any other place of payment and any other paying agent. We may change the place
at which the Notes will be payable, may appoint one or more additional paying
agents and may remove any paying agent, all at our discretion. (Section 1002)
Further, if we provide money to a paying agent to be used to make payments of
principal of, premium (if any) or interest on any Note and that money has not
rightfully been claimed two years after the applicable principal, premium or
interest payment is due, then we may instruct the paying agent to remit that
money to us, and any holder of a Note seeking those payments may thereafter look
only to us for that money. (Section 1003)
If interest is payable on a day which is not a Business Day, payment
will be postponed to the next Business Day, and no additional interest will
accrue as a result of the delayed payment. However, for LIBOR Rate Notes, if the
next Business Day is in the next calendar month, interest will be paid on the
preceding Business Day. (Section 114)
The "record date" is generally defined in the Indenture to mean 15
calendar days prior to each Interest Payment Date, whether or not that day is a
Business Day, unless otherwise indicated in the applicable pricing supplement.
All percentages resulting from any calculation of Notes will be
rounded, if necessary, to the nearest one-hundred thousandth of a percentage
point, with five one-millionths of a percentage point rounded upwards (e.g.,
9.876545% (or .09876545) being rounded to 9.87655% (or .0987655) and 9.876544%
(or .09876544) being rounded to 9.87654% (or .0987654)), and all dollar amounts
used in or resulting from such calculation will be rounded to the nearest cent
(with one-half cent being rounded upwards).
Interest Rates Payable on Notes
We have provided a glossary at the end of this prospectus to define the
capitalized words used in discussing the interest rates payable on the Notes.
Whenever we refer to time in this section, we mean the time as in effect in New
York, New York, unless otherwise specified.
The interest rate on the Notes will either be fixed or floating.
Fixed Rate Notes
If we issue Notes that bear interest at a fixed rate (the "Fixed Rate
Notes"), the applicable pricing supplement will designate the fixed rate of
interest payable on the Note. Unless otherwise set forth in the applicable
pricing supplement, interest on a Fixed Rate Note will be payable semi-annually
each April 1 and October 1 and at maturity or upon earlier redemption or
repayment. The record dates for the Fixed Rate Note will be March 15 (for
interest to be paid on April 1) and September 15 (for interest to be paid on
October 1). Interest payments will be the amount of interest accrued to, but
excluding, each April 1 and October 1. Interest will be computed using a 360-day
year of twelve 30-day months.
Floating Rate Notes
General. Each Note that bears interest at a floating rate (the
"Floating Rate Notes") will have an interest rate formula which may be based on
one of the following base rates, as determined by the pricing supplement:
o the commercial paper rate (the "Commercial Paper Rate Note");
o LIBOR (the "LIBOR Rate Note");
o the treasury rate (the "Treasury Rate Note"); or
o any other base rate specified in the pricing supplement.
The pricing supplement will also indicate the Spread and/or Spread Multiplier,
if any. The interest rates applicable to the Floating Rate Notes will be equal
to one of the four base rates, plus or minus the Spread, multiplied by the
Spread Multiplier. Any Floating Rate Note may have either or both of the
following:
o a maximum numerical interest rate limitation, or ceiling, on the
rate of interest that accrues during any interest period; and
o a minimum numerical interest rate limitation, or floor, on the rate of
interest that accrues during any interest period.
In addition, the interest rate on a Floating Rate Note will never be higher than
the maximum rate permitted by applicable law, as modified by United States law
of general application.
Date of Interest Rate Change. The interest rate on each Floating Rate
Note may be reset daily, weekly, monthly, quarterly, semi-annually, annually or
for any other period specified in the pricing supplement. The Interest Reset
Date will be:
o for Floating Rate Notes which reset daily, each Business Day;
o for Floating Rate Notes (other than Treasury Rate Notes) that reset weekly,
Wednesday of each week;
o for Treasury Rate Notes that reset weekly, Tuesday of each week;
o for Floating Rate Notes that reset monthly, the third Wednesday of each
month;
o for Floating Rate Notes that reset quarterly, the third Wednesday of
March, June, September and December;
o for Floating Rate Notes that reset semi-annually, the third
Wednesday of the two months specified in the applicable pricing
supplement;
o for Floating Rate Notes that reset annually, the third Wednesday
of the month specified in the applicable pricing supplement; and
o for Floating Rate Notes which reset for other periods, the day of
the week and month or months specified in the applicable pricing
supplement.
The initial interest rate or interest rate formula on each Floating
Rate Note effective until the first Interest Reset Date will be shown in a
pricing supplement. Thereafter, the interest rate will be the rate determined on
the next Interest Determination Date, as explained below. Each time a new
interest rate is determined, it will become effective on the subsequent Interest
Reset Date. If any Interest Reset Date is not a Business Day, then the Interest
Reset Date will be postponed to the next Business Day. However, in the case of a
LIBOR Rate Note, if the next Business Day is in the next calendar month, the
Interest Reset Date will be the immediately preceding Business Day. Further, if
an applicable auction of Treasury bills falls on a day that would otherwise be
an Interest Reset Date for Treasury Rate Notes, the Interest Reset Date will be
the next Business Day.
When Interest Rate is Determined. The Interest Determination Date for
the Commercial Paper Rate (the "Commercial Paper Interest Determination Date")
and for LIBOR (the "LIBOR Interest Determination Date") will be the second
Business Day preceding each Interest Reset Date. The Interest Determination Date
for the Treasury Rate (the "Treasury Rate Interest Determination Date") will be
the day on which Treasury bills would normally be auctioned. Treasury bills are
usually sold at auction on Monday of each week, unless that day is a legal
holiday, in which case the auction is usually held on Tuesday. However, the
auction may be held on the preceding Friday. If an auction is held on the
preceding Friday, that day will be the Interest Determination Date pertaining to
the Interest Reset Date occurring in the next week.
When Interest is Paid. Interest on Floating Rate Notes will be payable
monthly, quarterly, semi-annually or annually, as provided in the pricing
supplement. Except as provided below or in the pricing supplement, interest is
paid as follows:
o for Floating Rate Notes on which interest is payable monthly, the third
Wednesday of each month;
o for Floating Rate Notes on which interest is payable quarterly, the third
Wednesday of March, June, September and December;
o for Floating Rate Notes on which interest is payable
semi-annually, the third Wednesday of the two months specified in
the applicable pricing supplement; and
o for Floating Rate Notes on which interest is payable annually, the
third Wednesday of the month specified in the applicable pricing
supplement.
The interest payable for Floating Rate Notes (other than those Floating
Rate Notes which reset daily or weekly) will be the amount of interest accrued
(1) from and including the date the applicable Floating Rate Notes were issued
or (2) from but excluding the last date for which interest has been paid, to but
excluding the Interest Payment Date for those Floating Rate Notes. For Floating
Rate Notes which reset daily or weekly, the interest payable will be:
o the amount of interest accrued (a) from and including the date the
applicable Floating Rate Notes were issued, or (b) from but
excluding the last date for which interest has been paid, to and
including the record date immediately preceding the applicable
Interest Payment Date; and
o at maturity, the amount of interest accrued (a) from and including
the date the applicable Floating Rate Notes were issued or (b)
from but excluding the last date in respect of which interest has
been paid, to but excluding the maturity date for those Floating
Rate Notes.
The accrued interest for any period is calculated by multiplying the
principal amount of a Floating Rate Note by an accrued interest factor. The
accrued interest factor is computed by adding the interest factor calculated for
each day in the period for which accrued interest is being calculated. The
interest factor (expressed as a decimal) is computed by dividing the interest
rate applicable to that date by 360, except for Treasury Rate Notes, for which
it will be divided by the actual number of days in the year.
Commercial Paper Rate Notes. Each Commercial Paper Rate Note will bear
interest at the rate (calculated with reference to the Commercial Paper Rate and
the Spread and/or Spread Multiplier, if any) specified in that Commercial Paper
Rate Note and in the pricing supplement.
"Calculation Date" is generally defined to mean the tenth calendar day
after an Interest Determination Date or, if the tenth day is not a Business Day,
the next Business Day. Unless otherwise provided in the pricing supplement, The
Bank of New York is the "Calculation Agent" for the Floating Rate Notes, and,
upon request of any holder of a Floating Rate Note, will provide (1) the
interest rate then in effect and (2) if available, the interest rate to be
effective on the next Interest Reset Date for that Floating Rate Note.
"Commercial Paper Rate" means, with respect to any Commercial Paper
Rate Interest Determination Date, the Money Market Yield (calculated as
described below) on such date of the rate for commercial paper having the Index
Maturity specified in the applicable pricing supplement as published in
H.15(519) under the heading "Commercial Paper-Nonfinancial."
The following procedures will occur if the rate cannot be set as
described above:
o If the applicable rate is not published by 3:00 P.M. on the
Calculation Date, then the Commercial Paper Rate will be the Money
Market Yield, on that Commercial Paper Rate Interest Determination
Date, of the rate for commercial paper having the Index Maturity
specified in the applicable pricing supplement as published in
H.15 Daily Update (defined below) under the heading "Commercial
Paper - Non-Financial", or any successor heading.
o If the applicable rate is not published in either H.15(519) or
H.15 Daily Update by 3:00 P.M. 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 average of the offered
rates, as of approximately 11:00 A.M. on that Commercial Paper
Rate Interest Determination Date, of three leading dealers of
commercial paper in the City of New York selected by the
Calculation Agent for commercial paper of the applicable Index
Maturity placed for a non-financial issuer whose bond rating is
"AA," or the equivalent, from a nationally recognized statistical
rating agency.
o If the dealers selected by the Calculation Agent are not quoting
rates as set forth above, 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.
LIBOR Rate Notes. Each LIBOR Rate Note will bear interest at the rate
(calculated with reference to LIBOR and the Spread and/or Spread Multiplier, if
any) specified on the LIBOR Rate Note and in the pricing supplement, determined
by the Calculation Agent as follows:
The Calculation Agent will determine LIBOR as follows:
o With respect to any LIBOR Interest Determination Date, LIBOR will be
determined by either:
(1) if "LIBOR Reuters" is specified in the pricing supplement,
the average of the offered rates for deposits in the Designated
LIBOR Currency having the Index Maturity specified in the
applicable pricing supplement, beginning on the second Business
Day immediately after that date, that appears on the Reuters Page
as of 11:00 A.M., London time, on that date, if at least two
offered rates appear on the Reuters Page, or
(2) if "LIBOR Telerate" is specified in the pricing
supplement, the rate for deposits in the Designated LIBOR Currency
having the Index Maturity specified in the applicable pricing
supplement, beginning on the second Business Day immediately after
that date, that appears on the Telerate Page as of 11:00 A.M.,
London time, on that date.
If neither LIBOR Reuters nor LIBOR Telerate is specified in the
pricing supplement, LIBOR will be determined as if LIBOR Telerate
(and, if the U.S. dollar is the Designated LIBOR Currency, page
3750) had been specified.
o In the case where (1) above applies, if fewer than two offered
rates appear on the Reuters Page, or, in the case where (2) above
applies, if no rate appears on the Telerate Page, LIBOR for that
date will be determined as follows:
(1) LIBOR will be determined based on the rates at approximately 11:00
A.M., London time, on that LIBOR Interest Determination Date at
which deposits in the Designated LIBOR Currency having the
applicable Index Maturity are offered to prime banks in the London
interbank market selected by four major banks in the London
interbank market selected by the Calculation Agent for a single
transaction in that market at that time (a "Representative
Amount"). The offered rates must begin on the second Business Day
immediately after that LIBOR Interest Determination Date.
(2) The Calculation Agent will request the principal London office of
each of the four banks mentioned above to provide a quotation of
its rate. If at least two such quotations are provided, LIBOR will
equal the average of such quotations.
(3) If fewer than two quotations are provided, LIBOR will equal the
average of the rates quoted as of 11:00 A.M on that date by three
major banks in the applicable Principal Financial Center selected
by the Calculation Agent. The rates will be for loans in the
Designated LIBOR Currency to leading banks having the Index
Maturity specified in the pricing supplement beginning on the
second Business Day after that date and in a Representative
Amount; and
(4) If fewer than three of the banks are not quoting as mentioned,
the rate of interest in effect for the applicable period will be
the same as the rate of interest in effect for the prior Interest
Reset Period.
"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 Floating Rate Notes and the
applicable pricing supplement, the Designated LIBOR Currency shall be U.S.
dollars.
Treasury Rate Notes. Each Treasury Rate Note will bear interest at the
rate (calculated with reference to the Treasury Rate and the Spread and/or
Spread Multiplier, if any) specified on the Treasury Rate Note and in the
pricing supplement.
"Treasury Rate" means, with respect to any 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 on the display on Bridge
Telerate, Inc. (or any successor service) on page 56 or 57 under the heading
"AVGE INVEST YIELD."
The following procedures will occur if the rate cannot be set as
described above:
o If that rate is not published by 3:00 P.M. on the applicable
Calculation Date, the rate will be 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) for such
auction as otherwise announced by the United States Department of
the Treasury.
o If the results of the auction of Treasury bills having the
applicable Index Maturity are not reported by 3:00 P.M. 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 as follows:
(1) The rate shall be calculated as 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 average of the
secondary market bid rates, as of approximately 3:30 P.M. on such
Treasury Rate Interest Determination Date, of three leading
primary United States government securities dealers selected by
the Calculation Agent for the issue of Treasury bills with a
remaining maturity closest to the specified Index Maturity; and
(2) If fewer than three dealers are quoting as mentioned, the rate of
interest in effect for the applicable period will be the rate of
interest in effect for the prior interest reset period.
Redemptions
Redemption Elected by Us
As specified in the applicable pricing supplement, we may either (1)
redeem the Notes or (2) not redeem the Notes, prior to their stated maturity. If
we can redeem the Notes, then the following terms will apply as specified in the
applicable pricing supplement:
o we may redeem all or some of the Notes at one time;
o we may redeem Notes on any date or after the date specified as the
"Initial Redemption Date" in the applicable pricing supplement; and
o we may redeem Notes at the price specified in the applicable pricing
supplement, together with accrued interest to the redemption date.
(Section 1101)
If we redeem some or all of the Notes, we must notify the Trustee at
least 60 days before the redemption date, and the Trustee must notify you
between 30 and 60 days before the redemption date (by first-class mail, postage
prepaid) that some or all of the Notes will be redeemed. (Sections 1102 and
1104) Further, if only a part of a Note is redeemed, then the holder of the
unredeemed part of that Note will receive one or more new Notes. (Section 1107)
The Notes will not be subject to any sinking fund. (Section 1201)
Redemption Elected by You
You may be able to instruct us to purchase the Note that you hold
before that Note reaches its stated maturity date, pursuant to the terms of the
Notes. (Section 1301) If you can elect for us to redeem some or all of your
Notes, the applicable pricing supplement will specify (1) the date or dates on
which that Note may be sold by you and (2) the price (plus accrued interest)
that we must pay you for that Note.
To instruct us to purchase your Note, you must deliver to the paying
agent (currently, the Trustee), between 30 and 45 days before the date on which
the Note may be sold by you, the following items:
o the Note;
o the completed form entitled "Option to Elect Repayment" which will be
printed on the reverse side of the Note; and
o a fax or letter from (1) a member of a national securities
exchange, (2) a member of the National Association of Securities
Dealers, Inc. or (3) a U.S. commercial bank or trust company
containing the following information:
(a) your name;
(b) the principal amount of the Note you wish to sell;
(c) the certificate number or a description of the tenor and terms
of that Note;
(d) a statement that you are exercising your option to elect
repayment of the Note you hold; and
(e) a guarantee that the Note and the completed form will be
received by the paying agent within five Business Days after
the date the fax or letter is received by the paying agent.
Once you tender the Note to be redeemed to the paying agent, you may
not revoke your earlier election. You may instruct us to purchase part of the
Notes you hold, provided that the Notes you continue to hold after that
redemption are outstanding in an authorized denomination of $1,000 and an
integral multiple of $1,000.
If a series of Notes is held in book-entry form by DTC or its nominee,
as more particularly described under the heading "Book-Entry System," only it
(as the actual holder of the Notes) may instruct us to purchase those Notes.
However, you, as the beneficial owner of the Notes, may direct the broker or
other direct or indirect participant through which you hold an interest in the
Notes to notify DTC of your desire to have your Notes purchased (which will in
turn notify us according to the above-mentioned procedures). Because different
firms and brokers have different cut-off times for accepting instructions from
their customers, you should consult your broker or other direct or indirect
participant through which you hold an interest in the Notes to determine by when
you must act, so that timely notice is delivered to DTC.
At any time, we may purchase the Notes or beneficial ownership
interests in the Notes (if they are held in book-entry form) at any price in the
open market or otherwise. In our sole discretion, we may hold, resell or retire
any Notes or beneficial ownership interests in those Notes that we purchase.
Defaults, The Trustee
The following are defaults under the Indenture with respect to debt
securities issued under the Indenture:
(1) We fail to make payment of principal, premium (if any), or
interest on the debt securities when due;
(2) We fail to deposit and sinking fund payment for the debt securities
when due;
(3) We file for bankruptcy or certain other events involving
insolvency, receivership or bankruptcy occur; and
(4) We fail to perform certain covenants or agreements.
Certain of these events become defaults only after the lapse of prescribed
periods of time and/or notice from the Trustee. (Section 501)
Upon the occurrence of a default under the Indenture, either the Trustee
or the holder of at least 25% in principal amount of outstanding debt securities
of the affected series may declare the principal of all outstanding debt
securities immediately due and payable. However, if the default is cured, the
holders of a majority in principal amount of outstanding debt securities of the
affected series may rescind that declaration and annul the declaration and its
consequences. (Section 502)
The holders of a majority in principal amount of outstanding debt
securities of the affected series may direct the time, method and place of
conducting any proceeding for the enforcement of the Indenture. (Section 512)
<PAGE>
No holder of any debt security of any series has the right to institute any
proceeding with respect to the Indenture unless
the holder previously gave written notice of a default to the Trustee,
the holders of more than 25% in principal amount of outstanding debt
securities of the affected series tender to the Trustee reasonable
indemnity against costs and liabilities and request the Trustee to take
action,
the Trustee declines to take action, and
the holders of a majority in principal amount of outstanding debt
securities of the affected series give no inconsistent direction;
provided, however, that each holder of a Note shall have the right to enforce
payment of that Note when due. (Sections 507 and 508)
The Trustee must notify the holders of the debt securities of any
series within 90 days after a default with respect to those debt securities has
occurred, unless that default has been cured or waived. However, if we fail to
make payment of principal of, premium (if any), or interest or other amount
payable on any debt security, the Trustee may withhold the notice if it
determines that it is in the interest of those holders to do so. (Section 602
and 603)
We are required under the Trust Indenture Act of 1939, as amended, to
furnish to the Trustee at least once every year a certificate as to our
compliance with the conditions and covenants under the Indenture. (Section 1005)
Covenants, Consolidation, Merger, Etc.
We will keep the property that we use in our business, or in the
business of our subsidiaries, in good working order, and will improve it as
necessary to conduct our business and that of our subsidiaries, as the case may
be, properly. (Section 1007) Except as described in the next paragraph, we will
also maintain our corporate existence, rights and franchises and those of SCE&G
and GENCO (collectively, our "Principal Subsidiaries") necessary to conduct our
businesses properly. (Section 1006) However, we are not required to preserve (a)
the corporate existence of any of our subsidiaries other than our Principal
Subsidiaries or (b) any such right or franchise if we determine that its
preservation is not desirable in the conduct of our business or its loss is not
disadvantageous in any material respect to the holders of the outstanding debt
securities of any series. (Sections 801 and 1006)
We may, without the consent of the holders of the debt securities,
consolidate with, or sell, lease or convey all or substantially all of our
assets to, or merge into another corporation, provided that (1) we are the
continuing corporation, or, if not, the successor corporation assumes by a
supplemental indenture our obligations under the Indenture and (2) immediately
after giving effect to such transaction there will be no default in the
performance of any such obligations. (Section 801)
The Indenture provides that neither we nor our subsidiaries may 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 us or our subsidiaries
without effectively providing that the debt securities of each series issued
under the Indenture (together with, if we so determine, any other indebtedness
or obligation then existing or thereafter created ranking equally with those
debt securities) are secured equally and ratably with (or prior to) such Debt so
long as such Debt is so secured, except that this restriction will not apply to:
(1) Mortgages to secure Debt issued under
o the Indenture, dated April 1, 1993, between SCE&G and The Bank of New York,
N.A., o the Indenture of Mortgage, dated January 1, 1945, between SCE&G and The
Chase Manhattan Bank, o the Mortgage and Security Agreement, dated August 21,
1992, between GENCO and The Prudential Insurance Company of America, and
o the Indenture of Mortgage, dated December 1, 1977, between Pipeline
Corporation and Citibank, N.A.,
each as amended and supplemented to date and as it may be hereafter amended and
supplemented from time to time ("Existing Mortgages");
(2) Mortgages affecting property of a corporation existing at the time
it becomes our subsidiary or at the time it is merged into or consolidated with
us or one of our subsidiaries;
(3) 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;
(4) 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;
(5) Mortgages which secure only indebtedness owing by one of our
subsidiaries to us or to another of our subsidiaries;
(6) certain Mortgages to government entities, including mortgages to
secure debt incurred in pollution control or industrial revenue bond financings;
(7) Mortgages required by any contract or statute in order to permit us
or one of our subsidiaries to perform any contract or subcontract made with or
at the request of the United States of America, any state or any department,
agency or instrumentality or political subdivision of either;
(8) Mortgages to secure loans to us or to our subsidiaries maturing
within 12 months from the creation thereof and made in the ordinary course of
business;
(9) 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;
(10) Mortgages existing on the date of the Indenture;
(11) "Excepted Encumbrances" and "Permitted Encumbrances" as such
terms are defined in any of the Existing Mortgages;
(12) certain Mortgages typically incurred in the ordinary course
of business; and
(13) any extension, renewal or replacement of any Mortgage referred
to in the foregoing clauses (1) through (12), which does not
include the amount of debt secured thereby.
Notwithstanding the foregoing, we and any or all of our 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 (1) to (13) inclusive above) does not at any one
time exceed 10% of our Consolidated Net Tangible Assets (as hereinafter
defined). (Section 1009)
"Consolidated Net Tangible Assets" is defined as the total amount of
assets appearing on our consolidated balance sheet subtracting the following:
o reserves for depreciation and other asset valuation reserves but
excluding reserves for deferred federal income taxes;
o intangible assets such as goodwill, trademarks, trade names, patents
and unamortized debt discount and expense; and
o appropriate adjustments on account of minority interests of other
persons holding voting stock in any of our subsidiaries.
(Section 101)
Modification, Waiver and Meetings
We may, without the consent of any holders of outstanding debt
securities, enter into supplemental indentures for the following purposes:
o to add to our covenants for the benefit of the Holders or to surrender
a right or power conferred upon us in the Indenture,
o to secure the debt securities,
o to establish the form or terms of any series of debt securities, or
o to make certain other modifications, generally of a ministerial or
immaterial nature. (Section 901)
We may amend the Indenture only for other purposes with the consent of
the holders of a majority in principal amount of each affected series of
outstanding debt securities. However, we may not amend the Indenture without the
consent of the holder of each affected outstanding debt security for the
following purposes:
o to change the stated maturity or redemption date of the principal
of, or any installment of interest on, any debt security or to
reduce the principal amount, the interest rate of, any other
amount payable in respect of or any premium payable on the
redemption of, any debt security;
o to reduce the principal amount of any debt security which is an
Original Issue Discount Security (as defined in the Indenture)
that would be due upon a declaration of acceleration of that
security's maturity;
o to change the place or currency of any payment of principal of or any
premium or interest on any debt security;
o to 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 of that debt security;
o to 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
o to modify the foregoing requirements or reduce the percentage of
outstanding debt securities necessary to waive any past default.
(Section 902)
Except with respect to certain fundamental provisions, the holders of a
majority in principal amount of outstanding debt securities of any series may
waive past defaults with respect to that series and may waive our compliance
with certain provisions of the Indenture with respect to that series. (Sections
513 and 1010)
We, the Trustee or the holders of at least 10% in principal amount of
the outstanding debt securities of any series, may at any time call a meeting of
the holders of debt securities of that series, and notice of that meeting will
be 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 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)
Defeasance
If we deposit with the Trustee, money or Federal Securities (as
described in the Indenture) sufficient to pay, when due, the principal, premium
(if any) and interest due on the Notes, then we will be discharged from any and
all obligations with respect to the Notes, except for certain continuing
obligations to register the transfer or exchange of those debt securities, to
maintain paying agencies and to hold moneys for payment in trust. (Section 401)
Book-Entry System
If provided in the applicable pricing supplement, except under the
circumstances described below, SCANA will issue the Notes as one or more global
Notes (each a "Global Note"), each of which will represent beneficial interests
in the Notes. Each such beneficial interest in a Global Note is called a
"Book-Entry Note" in this prospectus. We will deposit those Global Notes with,
or on behalf of The Depository Trust Company, New York, New York ("DTC") or
another depository as we may subsequently designate (the "Depository") relating
to the Notes, and register them in the name of a nominee of the Depository.
So long as the Depository, or its nominee, is the registered owner of a
Global Note, the Depository or its nominee, as the case may be, will be
considered the owner of that Global Note for all purposes under the Indenture.
We will make payments of principal of, any premium, and interest on the Global
Note to the Depository or its nominee, as the case may be, as the registered
owner of that Global Note. Except as set forth below, owners of a beneficial
interest in a Global Note will not be entitled to have any individual Notes
registered in their names, will not receive or be entitled to receive physical
delivery of any Notes and will not be considered the owners of Notes under the
Indenture.
Accordingly, to exercise any of the rights of the registered owners of
the Notes, each person holding a beneficial interest in a Global Note must rely
on the procedures of the Depository. If that person is not a Direct Participant
(hereinafter defined), then that person must also rely on procedures of the
Direct Participant through which that person holds its interest.
DTC
The following information concerning DTC and its book-entry system has
been obtained from sources that SCANA believes to be reliable, but neither SCANA
nor any underwriter, dealer or agent takes any responsibility for the accuracy
of that information.
DTC will act as the initial securities depository for the Global Notes.
The Global Notes will be issued as fully-registered securities registered in the
name of Cede & Co. (DTC's partnership nominee)or such other name as may be
requested by an authorized representative of DTC. One fully-registered Note
certificate will be issued for each issue of the Notes, each in the aggregate
principal amount of such issue, and will be deposited with DTC. If, however, the
aggregate principal amount of any issue exceeds $200 million, one certificate
will be issued with respect to each $200 million of principal amount and an
additional certificate will be issued with respect to any remaining principal
amount of such issue.
DTC 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 Securities Exchange
Act of 1934. DTC holds securities that its participants ("Participants") deposit
with DTC. DTC also facilitates the settlement among 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 ("Indirect Participants"). The Rules applicable to DTC and its
Participants are on file with the SEC.
Purchases of the 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'
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 the 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. or
such other name as requested by an authorized representative of DTC. The deposit
of Notes with DTC and their registration in the name of Cede & Co. effect no
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
within an issue are being redeemed, DTC's practice is to determine by lot the
amount of the interest of each Direct Participant in such issue to be redeemed.
Neither DTC nor Cede & Co. (nor such other DTC nominee) will consent or
vote with respect to the Notes. Under its usual procedures, DTC mails an omnibus
proxy to SCANA 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).
Principal and interest payments on the Notes will be made to Cede & Co.
or such other nominee as may be requested by an authorized representative of
DTC. DTC's practice is to credit Direct Participants' accounts, upon DTC's
receipt of funds and corresponding detail from SCANA or the Trustee on 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 payable 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 (nor its nominee),
the Trustee or SCANA, subject to any statutory or regulatory requirements as may
be in effect from time to time. Payment of principal and interest to Cede & Co.
(or such other nominee as may be requested by an authorized representative of
DTC) is the responsibility of SCANA or the Trustee. Disbursement of such
payments to Direct Participants is the responsibility of DTC, and disbursement
of such payments to the Beneficial Owners shall be the responsibility of Direct
and Indirect Participants.
A Beneficial Owner shall give notice of any option to elect to have its
Book-Entry Notes repaid by SCANA, through its Participant, to the Trustee and
shall effect delivery of such Book-Entry Notes by causing the Direct Participant
to transfer the Participant's interest in the Global Note or Notes representing
such Book-Entry Notes, on DTC's records, to the Trustee. The requirement for
physical delivery of Book-Entry Notes in connection with a demand for repayment
will be deemed satisfied when the ownership rights in the Global Note or Notes
representing such Book-Entry Notes are transferred by Direct Participants on
DTC's records.
DTC management is aware that some computer applications, systems, and
the like for processing data ("Data Systems") that are dependent upon calendar
dates, including dates before, on, and after January 1, 2000, may encounter
"Year 2000 problems." DTC has informed its Participants and other members of the
financial community (the "Industry") that it has developed and is implementing a
program so that its Data Systems, as the same relate to the timely payment of
distributions (including principal and income payments) to security holders,
book-entry deliveries, and settlement of trades within DTC ("DTC Services"),
will continue to function appropriately. This program includes a technical
assessment and a remediation plan, each of which is complete. Additionally,
DTC's plan includes a testing phase, which DTC expects to be completed within
appropriate time frames.
However, DTC's ability to perform its services properly is also
dependent upon other parties, including but not limited to issuers and their
agents, as well as third-party vendors from whom DTC licenses software and
hardware, and third-party vendors on whom DTC relies for information or the
provision of services, including telecommunication and electrical utility
service providers, among others. DTC has informed the Industry that it is
contacting (and will continue to contact) third-party vendors from whom DTC
acquires services to: (1) impress upon them the importance of such services
being Year 2000 compliant; and (2) determine the extent of their efforts for
Year 2000 remediation (and, as appropriate, testing) of their services. In
addition, DTC is in the process of developing such contingency plans as it deems
appropriate.
According to DTC, the foregoing information with respect to DTC has
been provided to the Industry for informational purposes only and is not
intended to serve as a representation, warranty, or contract modification of any
kind.
DTC may discontinue providing its services as securities depository
with respect to the Notes at any time by giving reasonable notice to SCANA or
the Trustee. Under those circumstances, in the event that a successor securities
depository is not obtained, Notes in certificated form are required to be
printed and delivered. SCANA may decide to discontinue use of the system of
book-entry transfers through DTC (or a successor securities depository). In that
event, Notes in certificated form will be printed and delivered.
Neither SCANA nor the Trustee will have any responsibility or
obligation to the Depositary, any Participant in the book-entry system or any
Beneficial Owner with respect to (1) the accuracy of any records maintained by
DTC or any Participant; (2) the payment by DTC or by any Participant of any
amount due to any Participant or Beneficial Owner, respectively, in respect of
the principal amount or purchase price or redemption price of, or interest on,
any Notes; (3) the delivery of any notice by DTC or any participant; (4) the
selection of the Beneficial Owners to receive payment in the event of any
partial redemption of the Notes; or (5) any other action taken by DTC or any
Participant.
Plan of Distribution
We are offering the Notes on a continuous basis through the agents
named on the cover of this prospectus (the "Agents"), who have agreed to use
reasonable efforts to solicit purchases of the Notes. Initial purchasers may
propose certain terms of the Notes, but we will have the sole right to accept
offers to purchase Notes and may reject proposed purchases in whole or in part.
Each Agent will also have the right, in its discretion reasonably exercised and
without notice to us, to reject any proposed purchase of Notes in whole or in
part. We will pay each Agent a commission ranging from .125% to .750% of the
principal amount of Notes sold through such Agent, depending upon stated
maturity or the effective maturity as dictated by combinations of options or
other provisions found in the applicable pricing supplement.
We may sell Notes directly to investors on our own behalf. In these
cases, no commission or discount will be paid or allowed. In addition, we may
accept (but not solicit) offers from additional agents for the sale of
particular Notes; provided that any such solicitation and sale of Notes shall be
on terms substantially similar (including the same commission schedule) as
agreed to by the Agents. Such additional agents will be named in the applicable
pricing supplement.
We may also sell Notes to Agents as principals. Unless otherwise
specified in the applicable pricing supplement, any Note sold to an Agent as
principal will be purchased by the Agent at a price equal to 100% of the
principal amount thereof, less a percentage equal to the commission applicable
to an agency trade of identical stated maturity. Notes may be resold by an Agent
to investors or other purchasers from time to time in one or more transactions,
including negotiated transactions, at a fixed public offering price or at
varying prices determined by the Agent at the time of sale, or may be sold to
certain dealers as described below. After the initial public offering of Notes
to be resold to investors or other purchasers, the public offering price (in the
case of Notes to be resold at a fixed offering price), the concession and
discount may be changed. In addition, any Agent may sell Notes to any dealer at
a discount and, unless otherwise specified in an applicable pricing supplement,
such discount allowed to any dealer will not be in excess of the discount to be
received by the Agent from us.
No Note will have an established trading market when issued. The Notes
will not be listed on any securities exchange. The Agents may make a market in
the Notes, but the Agents are 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 the Notes will be sold.
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"). We have agreed to indemnify each Agent against certain
liabilities, including liabilities under the Securities Act, or to contribute to
payments that the Agents may be required to make in respect thereof. Each of the
Agents and certain of their affiliates engage in transactions with and perform
services for us and our affiliates in the ordinary course of business.
Experts
The consolidated financial statements incorporated by
reference from SCANA's Annual Report on Form 10-K for the year ended December
31, 1998 have been audited by Deloitte & Touche LLP, independent auditors, as
stated in their report, which is incorporated by reference into this prospectus
and is so incorporated in reliance upon the report of such firm, given upon
their authority as experts in accounting and auditing.
Validity of the Notes
McNair Law Firm, P.A., of Columbia, South Carolina, and H. Thomas
Arthur, II, Esq. of Columbia, South Carolina will pass upon the validity of the
Notes for SCANA. Thelen Reid & Priest LLP, of New York, New York, will pass upon
the validity of the Notes for any underwriters, lenders or Agents. Thelen Reid &
Priest LLP will rely as to all matters of South Carolina law upon the opinion of
H. Thomas Arthur, II, Esq. From time to time, Thelen Reid & Priest LLP renders
legal services to SCANA.
At September 30, 1999, H. Thomas Arthur, II, Esq., Vice President and
General Counsel for SCANA, owned beneficially 9,577 shares of SCANA's common
stock, including shares acquired by the trustee under its Stock Purchase-Savings
Program by use of contributions made by Mr. Arthur and earnings thereon and
including shares purchased by the trustee by use of SCANA contributions and
earnings thereon.
Glossary
Set forth below are definitions of some of the terms used in this
prospectus.
"Business Day" means any day other than a Saturday or Sunday that (1)
is not a day on which banking institutions in Washington, DC, or in New York,
New York, are authorized or obligated by law or executive order to be closed,
and (2) with respect to LIBOR Notes only, is a day on which dealings in deposits
in U.S. dollars are transacted in the London interbank market.
"Composite Quotations" means the daily statistical release designated
as "Composite 3:30 P.M. Quotations for U.S. Government Securities" or any
successor publication, published by the Federal Reserve Bank of New York.
"H.15(519)" means the weekly statistical release designated as
"Statistical Release H.15(519), Selected Interest Rates" or any successor
publication, published by the Board of Governors of the Federal Reserve System.
"H.15 Daily Update" means the daily update of H.15(519), available
through the world wide web site of the Board of Governors of the Federal Reserve
System at http://www.bog.frb.fed.us/releases/h15/update, or any successor site
or publication.
"Index Maturity" means, with respect to a Floating Rate Note, the
period to maturity of the Note on which the interest rate formula is based, as
indicated in the applicable pricing supplement.
"Interest Determination Date" means the date as of which the interest
rate for a Floating Rate Note is to be calculated, to be effective as of the
following Interest Reset Date and calculated on the related Calculation Date
(except in the case of LIBOR which is calculated on the related LIBOR Interest
Determination Date). The Interest Determination Dates will be indicated in the
applicable pricing supplement and in the Note.
"Interest Reset Date" means the date on which a Floating Rate Note will
begin to bear interest at the rate determined on any Interest Determination
Date. The Interest Reset Dates will be indicated in the applicable pricing
supplement and in the Note.
"Money Market Yield" is the yield (expressed as a percentage rounded
upwards, if necessary, to the next higher one-hundred-thousandth of a percentage
point) calculated in accordance with the following formula:
D x 360
Money Market Yield = -------------- x 100 360 -
(D x M)
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 period for which interest is being calculated.
"Principal Financial Center" means the capital city of the country that
issues as its legal tender the Designated LIBOR Currency of such LIBOR 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 European Communities), the
Principal Financial Center shall be The City of New York and Brussels,
respectively.
"Reuters Page" means 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 that designated page on that service) for the purpose
of displaying London interbank offered rates of major banks for the related
Designated LIBOR Currency).
"Spread" means the number of basis points specified in the applicable
pricing supplement as being applicable to the interest rate for a Floating Rate
Note.
"Spread Multiplier" means the percentage specified in the applicable
pricing supplement as being applicable to the interest rate for a Floating Rate
Note.
"Telerate Page" means the display on the Dow Jones Telerate Service on
the page designated in the applicable pricing supplement (or such other page as
may replace that 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 U.S. dollar deposits.
<PAGE>
$1,000,000,000
SCANA CORPORATION
Medium-Term Notes,
Due From Nine Months
to Thirty Years
From Date of Issue
SCANA
Prospectus
PaineWebber Incorporated
Credit Suisse First Boston
Banc of America Securities LLC
, 1999
<PAGE>
PART II
INFORMATION NOT REQUIRED
IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
Securities and Exchange Commission filing fee....... $264,000
Printing Expense.................................... 75,000#
Blue Sky and Legal fees............................. 175,000#
Rating Agency fees.................................. 47,000#
Trustee fees........................................ 35,000#
Accounting services................................. 25,000#
Miscellaneous....................................... 15,000#
Total.............................................. $636,000#
# 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. 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 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 SEC and which are designated by reference to
their exhibit numbers in prior filings are hereby incorporated herein by
reference and made a part hereof.
<PAGE>
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:
(i) to include any prospectus required by Section 10(a)
(3) of the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in
the registration statement; and
(iii) 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;
Provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference 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.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned registrant hereby undertakes 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.
<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 sale,
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 November 1, 1999.
(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: November 1, 1999
(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: November 1, 1999
(iii) Other Directors:
* B. L. Amick; J.A. Bennett, W. B. Bookhart, Jr.; H. C. Stowe; H. M. Chapman;
E. T. Freeman; L.M. Gressette, Jr., W. H. Hipp; L.M.Miller, D. M. Hagood;
J. B. Rhodes; M.K. Sloan
* Signed on behalf of each of these persons:
/s/K. B. Marsh
K.B. Marsh
(Attorney-in-Fact)
<PAGE>
SCANA CORPORATION
EXHIBIT INDEX
1.01 Underwriting Agreement
Form of Selling Agency Agreement (Filed herewith on page 32)
2.01 Agreement and Plan of Merger, date as of February 16, 1999 as amended
and restated as of May 10, 1999, by and among Public Service Company
of North Carolina, Incorporated, SCANA Corporation, New Sub I, Inc.
and New Sub II, Inc. (Filed as Exhibit 2.1 to SCANA Form S-4 on May
11, 1999 and incorporated by reference herein)
4.02 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 and incorporated by reference herein)
5.01 Opinion of H. Thomas Arthur, II, Esq. re legality (Filed herewith on
page 82)
8.01 Opinion re tax matters (Not applicable)
12.01 Statement Re Computation of Ratios (Filed herewith on page 83)
15.01 Letter re unaudited interim financial information (Not applicable)
23.01 Consent of Deloitte & Touche LLP (Filed herewith on page 84)
23.02 Consent of H. Thomas Arthur, II, Esquire (Included in his opinion
filed as Exhibit 5.01)
24.01 Power of Attorney (Filed herewith on page 85)
24.02 Power of Attorney (Filed herewith on page 86)
25.01 Statement of eligibility of The Bank of New York, as Trustee (Form
T-1) (Filed herewith on page 87)
26.01 Invitation for competitive bids (Not applicable)
27.01 Financial Data Schedule (Not applicable)
99.01 Additional Exhibits (Not applicable
SCANA Corporation
$1,000,000,000 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
Banc of America Securities LLC
Bank of America Center
100 North Tryon Street; NC1-007-07-01
Charlotte, NC 28255
Selling Agency Agreement
[Date]
New York, New York
Dear Sirs:
SCANA Corporation, a South Carolina corporation (the "Company"),
confirms its agreement with each of you as evidenced by this Selling Agency
Agreement dated ______, 1999 (the "Agreement"), with respect to the issue and
sale by the Company of up to $1,000,000,000 aggregate principal amount of its
Medium-Term Notes, Due from Nine Months to Thirty Years from Date of Issue (the
"Notes"). The Notes will be issued under an indenture (the "Indenture") dated as
of November 1, 1989 between the Company and The Bank of New York, as trustee
(the "Trustee"). Unless otherwise set forth in a supplement to the Prospectus
referred to below, the Notes will be issued in fully registered form in minimum
denominations of $1,000 and in denominations exceeding such amount by integral
multiples of $1,000, and 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 be
amended only by written agreement of the Company and you after notice to, and
with the approval of, the Trustee. For the purposes of this Agreement, the term
"Agent" shall refer to any of you acting solely in the capacity as agent for the
Company pursuant to Section 2(a) and not as principal (collectively, the
"Agents"), the term the "Purchaser" shall refer to one of you acting solely as
principal pursuant to Section 2(b) and not as agent, and the term "you" shall
refer to you collectively whether at any time any of you are acting in both such
capacities or in either such capacity.
1. Representations and Warranties. The Company represents and warrants
to, and agrees with, you as set forth below in this Section 1. Certain terms
used in this Section 1 are defined in paragraph (h) hereof.
(a) The Company meets the requirements for use of Form S-3
under the Securities Act of 1933, as amended (the "Act") and has filed with the
Securities and Exchange Commission (the "Commission") a registration statement
on such Form (File Number:333-________), including a prospectus (the
"Prospectus"), which registration statement has become effective, for the
registration under the Act of $1,000,000,000 aggregate principal amount of debt
securities (the "Securities"), including the Notes. Such registration statement,
as amended at the date of this Agreement, meets the requirements set forth in
Rule 415(a)(1)(ix) or (x) under the Act and complies in all other material
respects with said Rule. In connection with the sale of Notes the Company
proposes to file with the Commission pursuant to the applicable paragraph of
Rule 424(b) under the Act supplements to the Prospectus specifying the interest
rates, maturity dates and, if appropriate, other terms of the Notes sold
pursuant hereto or the offering thereof.
(b) As of the Execution Time (as defined by Section 1(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
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, as
amended (the "Trust Indenture Act") and the Securities Exchange Act of 1934,
as amended (the "Exchange Act") and the respective rules thereunder; (ii) the
Registration Statement, as amended as of any such time, did not or will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the
statements therein not misleading; and (iii) the Prospectus, as supplemented
as of any such time, will not contain any untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that the Company makes no representations or
warranties as to (i) that part of the Registration Statement which shall
constitute the Statement of Eligibility (Form T-1) under the Trust Indenture
Act of the Trustee or (ii) the information contained in or omitted from the
Registration Statement or the Prospectus (or any supplement thereto) in
reliance upon and in conformity with information furnished in writing to the
Company by any of you specifically for use in connection with the preparation
of the Registration Statement or the Prospectus (or any supplement thereto).
(c) As of the 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 (the "PUHC
Act") 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
(the "Investment Company Act"); provided that the Company has applied for the
approval of the acquisition of Public Service Company of North Carolina,
Incorporated, a public utility company within the meaning of the PUHC Act
("PSNC"), and upon receipt of such approval and consummation of such
acquisition, the Company will become a registered holding company under the PUHC
Act.
(h) Except for such approvals as may be required under the
PUHC Act, all approvals required to be obtained from governmental and regulatory
authorities in connection with the issuance and sale of the Notes have been
obtained and are in full force and effect.
(i) The terms which follow, when used in this Agreement, shall
have the meanings indicated. The term "Effective Date" shall mean the date that
Registration Statement No. 333-_________ and any subsequent post-effective
amendment or amendments to the Registration Statement became or become
effective. "Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto. "Prospectus" shall mean the form
of basic prospectus relating to the Securities contained in the Registration
Statement at the Effective Date. "Registration Statement" shall mean the
registration statement referred to in paragraph (a) above, including
incorporated documents, exhibits and financial statements, as amended at the
Execution Time. "Rule 415" and "Rule 424" refer to such rules under the Act. Any
reference herein to the Registration Statement or the Prospectus shall be deemed
to refer to and include the documents incorporated by reference therein pursuant
to Item 12 of Form S-3 which were filed under the Exchange Act on or before the
Effective Date of the Registration Statement or the issue date of the
Prospectus, as the case may be; and any reference herein to the terms "amend,"
"amendment" or "supplement" with respect to the Registration Statement or the
Prospectus shall be deemed to refer to and include the filing of any document
under the Exchange Act after the Effective Date of the Registration Statement or
the issue date of the Prospectus, as the case may be, deemed to be incorporated
therein by reference.
2. Appointment of Agents; Solicitation by the Agents of Offers
to Purchase; Sales of Notes to a Purchaser.
(a) Subject to the terms and conditions set forth herein, the
Company hereby authorizes each of the Agents to act as its agent to solicit
offers for the purchase of all or part of the Notes from the Company.
On the basis of the representations and warranties, and subject to the
terms and conditions set forth herein, each of the Agents agrees, as agent of
the Company, to use its reasonable efforts to solicit offers to purchase the
Notes from the Company upon the terms and conditions set forth in the Prospectus
(and any supplement thereto) and in the Procedures. Each Agent shall make
reasonable efforts to assist the Company in obtaining performance by each
purchaser whose offer to purchase Notes has been solicited by such Agent and
accepted by the Company, but such Agent shall not, except as otherwise provided
in this Agreement, have any liability to the Company in the event any such
purchase is not consummated for any reason. Except as provided in Section 2(b) ,
under no circumstances will any Agent be obligated to purchase any Notes for its
own account. It is understood and agreed, however, that any Agent may purchase
Notes as principal pursuant to Section 2(b).
The Company reserves the right, in its sole discretion, to instruct the
Agents to suspend at any time, for any period of time or permanently, the
solicitation of offers to purchase the Notes. Upon receipt of instructions from
the Company, the Agents will forthwith suspend solicitation of offers to
purchase Notes from the Company until such time as the Company has advised them
that such solicitation may be resumed.
The Company agrees to pay each Agent a commission, on the Closing Date
with respect to each sale of Notes by the Company as a result of a solicitation
made by such Agent, in an amount equal to that percentage specified in Schedule
I hereto of the aggregate principal amount of the Notes sold by the Company.
Such commission shall be payable as specified in the Procedures.
Subject to the provisions of this Section and the Procedures, offers
for the purchase of Notes may be solicited by an Agent, as agent for the
Company, at such time and in such amounts as such Agent deems advisable. The
Company may from time to time offer Notes for sale otherwise than through an
Agent.
If the Company shall default in its obligations to deliver Notes to a
purchaser whose offer it has accepted, the Company shall indemnify and hold each
of you harmless against any loss, claim or damage arising from or as a result to
such default by the Company.
(b) Subject to the terms and conditions stated herein,
whenever the Company and any Agent determine that the Company shall sell Notes
directly to such Agent as a Purchaser, each such sale of Notes shall be made in
accordance with the terms of this Agreement, unless otherwise agreed by the
Company and such Agent, and any supplemental agreement relating thereto (which
may be an oral or written agreement) between the Company and the Purchaser. Each
such supplemental agreement (which shall be substantially in the form of Exhibit
B) is herein referred to as a "Terms Agreement." Each Terms Agreement shall
describe (whether orally or in writing) the Notes to be purchased by the
Purchaser pursuant thereto, and shall specify the principal amount of such
Notes, the maturity date of such Notes, the rate at which interest will be paid
on the Notes and the record dates for each payment of interest, the Closing Date
for the purchase of such Notes, the place of delivery of the Notes and payment
therefor, the method of payment and any requirements for the delivery of
opinions of counsel, certificates from the Company or its officers, or a letter
from the Company's independent public accountants as described in Section 6(b).
Such Terms Agreement shall also specify the period of time referred to in
Section 4(m). The Purchaser's commitment to purchase Notes pursuant to any Terms
Agreement shall be deemed to have been made on the basis of the representations
and warranties of the Company herein contained and shall be subject to the terms
and conditions herein set forth.
Delivery of the certificates for Notes sold to the Purchaser pursuant
to any Terms Agreement shall be made as agreed to between the Company and the
Purchaser as set forth in the respective Terms Agreement, not later than the
Closing Date set forth in such Terms Agreement, against payment of funds to the
Company in the net amount due to the Company for such Notes by the method and in
the form set forth in the Procedures unless otherwise agreed to between the
Company and the Purchaser in such Terms Agreement.
Unless otherwise agreed to between the Company and the Purchaser in a
Terms Agreement, any Note sold to a Purchaser (i) shall be purchased by such
Purchaser at a price equal to 100% of the principal amount thereof less a
percentage equal to the commission applicable to an agency sale of a Note of
identical maturity and (ii) may be resold by such Agent at varying prices from
time to time. In connection with any resale of Notes purchased, a Purchaser may
use a selling or dealer group and may reallow any portion of the discount or
commission payable pursuant hereto to dealers or purchasers.
3. Offering and Sale of Notes.
Each Agent and the Company agree to perform the respective
duties and obligations specifically provided to be performed by them in the
Procedures.
4. Agreements. The Company agrees with you that:
(a) Prior to the termination of the offering of the Notes, the
Company will not file any amendment to the Registration Statement or supplement
to the Prospectus (except (i) periodic or current reports filed under the
Exchange Act or (ii) a supplement relating to any offering of Notes providing
solely for the specification of or a change in the maturity dates, interest
rates, issuance prices or other similar terms of any Notes). Subject to the
foregoing sentence, the Company will cause each supplement to the Prospectus to
be filed with the Commission pursuant to the applicable paragraph of Rule 424(b)
within the time period prescribed and will provide evidence satisfactory to you
of such filing. The Company will promptly advise each of you (i) when the
Prospectus, and any supplement thereto, shall have been filed with the
Commission pursuant to Rule 424(b), (ii) when, prior to the termination of the
offering of the Notes, any amendment of the Registration Statement shall have
been filed or become effective, (iii) of any request by the Commission for any
amendment of the Registration Statement or supplement to the Prospectus or for
any additional information, (iv) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement, or any part
thereof, or the institution or threatening of any proceeding for that purpose,
or if the Company has knowledge that any such action is contemplated by the
Commission, and (v) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Notes for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose. The Company will use its best efforts to prevent the issuance of any
such stop order and, if issued, to obtain as soon as possible the withdrawal
thereof.
(b) If, at any time when a prospectus relating to the Notes is
required to be delivered under the Act, any event occurs as a result of which
the Prospectus as then supplemented would include any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it shall be necessary to amend the Registration
Statement or to supplement the Prospectus to comply with the Act or the Exchange
Act or the respective rules thereunder, the Company promptly will (i) notify
each of you to suspend solicitation of offers to purchase Notes (and, if so
notified by the Company, each of you shall forthwith suspend such solicitation
and cease using the Prospectus as then supplemented), (ii) prepare and file with
the Commission, subject to the first sentence of paragraph (a) of this Section
4, an amendment or supplement which will correct such statement or omission or
effect such compliance and (iii) supply any supplemented Prospectus to each of
you in such quantities as you may reasonably request. If such amendment or
supplement, and any documents, certificates and opinions furnished to any of you
pursuant to paragraph (g) of this Section 4 in connection with the preparation
or filing of such amendment or supplement are satisfactory in all respects to
you, you will, upon the filing of such amendment or supplement with the
Commission and upon the effectiveness of an amendment to the Registration
Statement, if such an amendment is required, resume your obligation to solicit
offers to purchase Notes hereunder. Notwithstanding the foregoing, if, at the
time of any notification to suspend solicitations, any Agent shall own any of
the Notes with the intention of reselling them, or the Company has accepted an
offer to purchase Notes but the related settlement has not occurred, the
Company, subject to the provisions of subsection (a) of this Section, will
promptly prepare and file with the Commission an amendment or supplement which
will correct such statement or omission or an amendment which will effect such
compliance.
(c) The Company, during the period when a prospectus relating
to the Notes is required to be delivered under the Act, will file promptly all
documents required to be filed with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act and will furnish to each of you copies of
such documents. In addition, on or prior to the date on which the Company makes
any announcement to the general public concerning earnings or concerning any
other event which is required to be described, or which the Company proposes to
describe, in a document filed pursuant to the Exchange Act, the Company will
furnish to each of you the information contained or to be contained in such
announcement. The Company also will furnish to each of you copies of all other
press releases or announcements to the general public. The Company will
immediately notify each of you of any downgrading in the rating of the Notes or
any other debt securities of the Company, or any proposal to downgrade the
rating of the Notes or any other debt securities of the Company, by any
"nationally recognized statistical rating organization" (as defined for purposes
of Rule 436(g) under the Act), as soon as the Company learns of any such
downgrading or proposal to downgrade.
(d) As soon as practicable, the Company will make generally
available to its security holders and to each of you an earnings statement or
statements of the Company and its subsidiaries which will satisfy the provisions
of Section 11(a) of the Act and Rule 158 under the Act.
(e) The Company will furnish to each of you and your counsel,
without charge, copies of the Registration Statement (including all amendments
and exhibits thereto) and, so long as delivery of a prospectus may be required
by the Act, as many copies of the Prospectus and any supplement thereto as you
may reasonably request.
(f) The Company will arrange for the qualification of the
Notes for sale under the laws of such jurisdictions as any of you may designate,
will maintain such qualifications in effect so long as required for the
distribution of the Notes, and will arrange for the determination of the
legality of the Notes for purchase by institutional investors.
(g) The Company shall furnish to each of you such information,
documents, certificates of officers of the Company and opinions of counsel for
the Company relating to the business, operations and affairs of the Company, the
Registration Statement, the Prospectus, and any amendments thereof or
supplements thereto, the Indenture, the Notes, this Agreement, the Procedures
and the performance by the Company and you of its and your respective
obligations hereunder and thereunder as any of you may from time to time and at
any time prior to the termination of this Agreement reasonably request.
(h) The Company shall, whether or not any sale of the Notes is
consummated, (i) pay all expenses incident to the performance of its obligations
under this Agreement, including the fees and disbursements of its accountants
and counsel, the cost of printing or other production and delivery of the
Registration Statement, the Prospectus, all amendments thereof and supplements
thereto, the Indenture, this Agreement and all other documents relating to the
offering, the cost of preparing, printing, packaging and delivering the Notes,
the fees and disbursements, including fees of counsel, incurred in compliance
with Section 4(f), the fees and disbursements of the Trustee and the fees of any
agency that rates the Notes, (ii) reimburse each of you on a monthly basis for
all out-of-pocket expenses (including without limitation advertising expenses),
if any, incurred by you in connection with this Agreement and (iii) pay the
reasonable fees and expenses of your counsel incurred in connection with this
Agreement.
(i) Each acceptance by the Company of an offer to purchase
Notes will be deemed to be an affirmation that its representations and
warranties contained in this Agreement are true and correct at the time of such
acceptance, as though made at and as of such time, and a covenant that such
representations and warranties will be true and correct at the time of delivery
to the purchaser of the Notes relating to such acceptance, as though made at and
as of such time (it being understood that for purposes of the foregoing
affirmation and covenant such representations and warranties shall relate to the
Registration Statement and Prospectus as amended or supplemented at each such
time). Each such acceptance by the Company of an offer for the purchase of Notes
shall be deemed to constitute an additional representation, warranty and
agreement by the Company that, as of the settlement date for the sale of such
Notes, after giving effect to the issuance of such Notes, of any other Notes to
be issued on or prior to such settlement date and of any other Securities to be
issued and sold by the Company on or prior to such settlement date, the
aggregate amount of Securities (including any Notes) which have been issued and
sold by the Company will not exceed the amount of Securities registered pursuant
to the Registration Statement.
(j) Each time that the Registration Statement or the
Prospectus is amended or supplemented (other than by an amendment or supplement
relating to any offering of Securities other than the Notes or providing solely
for the specification of or a change in the maturity dates, the interest rates,
the issuance prices or other similar terms of any Notes sold pursuant hereto),
the Company will deliver or cause to be delivered promptly to each of you a
certificate of the Company, signed by the Chairman of the Board or the President
and the principal financial or accounting officer of the Company, dated the date
of the effectiveness of such amendment or the date of the filing of such
supplement, in form reasonably satisfactory to you, of the same tenor as the
certificate referred to in Section 5(e) but modified to relate to the last day
of the fiscal quarter for which financial statements of the Company were last
filed with the Commission and to the Registration Statement and the Prospectus
as amended and supplemented to the time of the effectiveness of such amendment
or the filing of such supplement.
(k) Each time that the Registration Statement or the
Prospectus is amended or supplemented (other than by an amendment or supplement
(i) relating to any offering of Securities other than the Notes, (ii) providing
solely for the specification of or a change in the maturity dates, the interest
rates, the issuance prices or other similar terms of any Notes sold pursuant
hereto or (iii) setting forth or incorporating by reference financial statements
or other information as of and for a fiscal quarter, unless, in the case of
clause (iii) above, in the reasonable judgment of any of you, such financial
statements or other information are of such a nature that an opinion of counsel
should be furnished), the Company shall furnish or cause to be furnished
promptly to each of you written opinions of counsel to the Company satisfactory
to each of you, dated the date of the effectiveness of such amendment or the
date of the filing of such supplement, in form satisfactory to each of you, of
the same tenor as the opinions referred to in Sections 5(b) and 5(c) but
modified to relate to the Registration Statement and the Prospectus as amended
and supplemented to the time of the effectiveness of such amendment or the
filing of such supplement or, in lieu of such opinion, counsel last furnishing
such an opinion to you may furnish each of you with a letter to the effect that
you may rely on such last opinion to the same extent as though it were dated the
date of such letter authorizing reliance (except that statements in such last
opinion will be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of the effectiveness of such
amendment or the filing of such supplement).
(l) Each time that the Registration Statement or the
Prospectus is amended or supplemented to set forth amended or supplemental
financial information, the Company shall cause its independent public
accountants promptly to furnish to each of you a letter, dated the date of the
effectiveness of such amendment or the date of the filing of such supplement, in
form satisfactory to each of you, of the same tenor as the letter referred to in
Section 5(f) with such changes as may be necessary to reflect the amended and
supplemental financial information included or incorporated by reference in the
Registration Statement and the Prospectus, as amended or supplemented to the
date of such letter; provided, however, that, if the Registration Statement or
the Prospectus is amended or supplemented solely to include or incorporate by
reference financial information as of and for a fiscal quarter, the Company's
independent public accountants may limit the scope of such letter, which shall
be satisfactory in form to each of you, to the unaudited financial statements,
the related "Management's Discussion and Analysis of Financial Condition and
Results of Operations" and any other information of an accounting, financial or
statistical nature included in such amendment or supplement, unless, in the
reasonable judgment of any of you, such letter should cover other information or
changes in specified financial statement line items.
(m) During the period, if any, specified (whether orally or in
writing) in any Terms Agreement, the Company shall not, without the prior
consent of the Purchaser thereunder, offer, sell, contract to sell or announce
the proposed issuance of any debt securities, including Notes, with terms
substantially similar to the Notes being purchased pursuant to such Terms
Agreement, other than borrowings under its revolving credit agreements and lines
of credit and issuances of its commercial paper.
5. Conditions to the Obligations of the Agents.
The obligation of each Agent to solicit offers to purchase the Notes
shall be subject to the accuracy of the representations and warranties on the
part of the Company contained herein as of the Execution Time, on the Effective
Date, when any supplement to the Prospectus is filed with the Commission, as of
each Closing Date and on the date of each solicitation, to the accuracy of the
statements of the Company made in any certificates pursuant to the provisions
hereof, to the performance by the Company of its obligations hereunder and to
the following additional conditions:
(a) If filing of the Prospectus, or any supplement thereto, is
required pursuant to Rule 424(b), the Prospectus, and any such supplement, shall
have been filed in the manner and within the time period required by Rule
424(b); and no stop order suspending the effectiveness of the Registration
Statement, or any part thereof, shall have been issued and no proceedings for
that purpose shall have been instituted or threatened, or, to the knowledge of
the Company or any Agent, be contemplated by the Commission.
(b) The Company shall have furnished to each Agent the opinion
of its General Counsel or one of the Associate General Counsel for the Company
designated by its General Counsel, dated the Execution Time, to the effect that:
(i) each of the Company and its Subsidiaries has been
duly incorporated and is validly existing as a corporation in
good standing under the laws of the jurisdiction in which it
is chartered or organized, with full corporate power and
authority to own its properties and conduct its business as
described in the Prospectus, and is duly qualified to do
business as a foreign corporation and is in good standing
under the laws of each jurisdiction which requires such
qualification wherein it owns or leases material properties or
conducts material business;
(ii) all the outstanding shares of capital stock of
each Subsidiary have been duly and validly authorized and
issued and are fully paid and nonassessable, and, except as
otherwise set forth in the Prospectus, all outstanding shares
of capital stock of the Subsidiaries are owned by the Company
either directly or through wholly owned subsidiaries free and
clear of any perfected security interest and, to the knowledge
of such counsel, after due inquiry, any other security
interests, claims, liens or encumbrances;
(iii) the Company's authorized equity capitalization
is as set forth in the Registration Statement; and the Notes
conform to the description thereof contained in the Prospectus
(subject to the insertion in the Notes of the maturity dates,
the interest rates and other similar terms thereof which will
be described in supplements to the Prospectus as contemplated
by the third sentence of Section 1(a) of this Agreement);
(iv) the Indenture has been duly authorized, executed
and delivered, has been duly qualified under the Trust
Indenture Act, and constitutes a legal, valid and binding
instrument enforceable against the Company in accordance with
its terms (subject, as to enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium
or other laws affecting creditors' rights generally from time
to time in effect); and the Notes have been duly authorized
and, when executed and authenticated in accordance with the
provisions of the Indenture and the Procedures and delivered
by the Trustee and paid for by the purchasers thereof, will
constitute legal, valid and binding obligations of the Company
entitled to the benefits of the Indenture;
(v) the Company is a public utility holding company
within the meaning of the PUHC Act; and the Company is not
subject to registration under the Investment Company Act;
(vi) except for such approvals as may be required
under the PUHC Act, all approvals required to be obtained from
governmental and regulatory authorities in connection with the
issuance and sale of the Notes have been obtained and are in
full force and effect;
(vii) to the best knowledge of such counsel, there is
no pending or threatened action, suit or proceeding before any
court or governmental agency, authority or body or any
arbitrator involving the Company or any of its Subsidiaries,
of a character required to be disclosed in the Registration
Statement which is not adequately disclosed in the Prospectus,
and there is no franchise, contract or other document of a
character required to be described in the Registration
Statement or Prospectus, or to be filed as an exhibit, which
is not described or filed as required; and the statements
included or incorporated in the Prospectus describing any
legal proceedings or material contracts or agreements relating
to the Company fairly summarize such matters;
(viii) the Registration Statement has become
effective under the Act; any required filing of the
Prospectus, and any supplements thereto, pursuant to Rule
424(b) has been made in the manner and within the time period
required by Rule 424(b); to the best knowledge of such
counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued, no proceedings for
that purpose have been instituted or threatened, and the
Registration Statement and the Prospectus (except that no
opinion need be expressed as to the financial statements and
other financial and statistical information contained therein
or the Trustee's Statement of Eligibility on Form T-1) comply
as to form in all material respects with the applicable
requirements of the Act and the Exchange Act and the
respective rules thereunder; and such counsel has no reason to
believe that the Registration Statement at the Execution Time
contained any untrue statement of a material fact or omitted
to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or
that the Prospectus includes any untrue statement of a
material fact or omits to state a material fact necessary to
make the statements therein, in the light of the circumstances
under which they were made, not misleading (except that no
opinion need be expressed as to the financial statements and
other financial and statistical information contained or
incorporated by reference therein or to any information
relating to the book-entry system of payments and transfers of
the Notes or the depository therefor set forth under the
captions "Description of Medium-Term Notes - Book Entry
System" in the Prospectus or as to the Trustee's Statement of
Eligibility on Form T-1);
(ix) this Agreement has been duly authorized,
executed and delivered by the Company;
(x) 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 under the PUHC
Act and such as may be required under the blue sky laws of any
jurisdiction in connection with the sale of the Notes as
contemplated by this Agreement and such other approvals
(specified in such opinion) as have been obtained;
(xi) neither the execution and delivery of the
Indenture, the issue and sale of the Notes, nor the
consummation of any other of the transactions herein
contemplated nor the fulfillment of the terms hereof will
conflict with, result in a breach or violation of, or
constitute a default under, any law or the charter or bylaws
of the Company or the terms of any indenture or other
agreement or instrument known to such counsel and to which the
Company or any of its subsidiaries is a party or bound, or any
judgment, order, decree or regulation known to such counsel to
be applicable to the Company or any of its subsidiaries of any
court, regulatory body, administrative agency, governmental
body or arbitrator having jurisdiction over the Company or any
of its subsidiaries; and
(xii) no holders of securities of the Company have
rights to the registration of such securities under the
Registration Statement.
In rendering such opinion, such counsel may rely as to matters of fact, to the
extent deemed proper, on certificates of responsible officers of the Company and
public officials and may assume that the laws of the State of New York are
identical to the laws of the State of South Carolina. References to the
Prospectus in this paragraph (b) include any supplements thereto at the date
such opinion is rendered.
(c) The Company shall have furnished to each Agent the opinion
of McNair Law Firm, P.A., counsel for the Company, dated the Execution Time, to
the effect that:
(i) each of the Company and its Subsidiaries has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction in which it is
chartered or organized, with full corporate power and
authority to own its properties and conduct its business as
described in the Prospectus;
(ii) the Company's authorized equity capitalization is as set forth
in the Registration Statement; and the Notes conform to the
description thereof contained in the Prospectus (subject to
the insertion in the Notes of the maturity dates, the interest
rates and other similar terms thereof which will be described
in supplements to the Prospectus as contemplated by the third
sentence of Section 1(a) of this Agreement);
(iii) the Indenture has been duly authorized, executed and delivered,
has been duly qualified under the Trust Indenture Act, and
constitutes a legal, valid and binding instrument enforceable
against the Company in accordance with its terms (subject, as to
enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws 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 PUHC Act but is exempt from registration as such
under such Act; and the Company is not subject to registration
under the Investment Company Act; provided that the Company has
applied for approval of the acquisition of PSNC, and upon receipt
of such approval and consummation of such acquisition, the
Company will become a registered holding company under the PUHC
Act;
(vi) except for such approvals as may be required under the PUHC Act,
all approvals required to be obtained from governmental and
regulatory authorities in connection with the issuance and sale
of the Notes have been obtained and are in full force and effect;
(vii) this Agreement has been duly authorized, executed and delivered
by the Company; and
(viii) neither the execution and delivery of the Indenture, the issue
and sale of the Notes, nor the consummation of any other of the
transactions herein contemplated nor the fulfillment of the terms
hereof will conflict with, result in a breach or violation of, or
constitute a default under, any law or the charter or bylaws of
the Company or the terms of any indenture or other agreement or
instrument known to such counsel and to which the Company or any
of its subsidiaries is a party or bound, or any judgment, order,
decree or regulation known to such counsel to be applicable to
the Company or any of its subsidiaries of any court, regulatory
body, administrative agency, governmental body or arbitrator
having jurisdiction over the Company or any of its subsidiaries.
In rendering such opinion, such counsel may rely as to matters of fact, to the
extent deemed proper, on certificates of responsible officers of the Company and
public officials and may assume that the laws of the State of New York are
identical to the laws of the State of South Carolina. References to the
Prospectus in this paragraph (c) include any supplements thereto at the date
such opinion is rendered.
(d) Each Agent shall have received from 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.
(e) The Company shall have furnished to each Agent a
certificate of the Company, signed by the Chairman of the Board or the President
and the principal financial or accounting officer of the Company, dated the
Execution Time, to the effect that the signers of such certificate have
carefully examined the Registration Statement, the Prospectus, any supplement to
the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company
in this Agreement are true and correct in all material
respects upon and as of the date hereof with the same effect
as if made on the date hereof and the Company has complied
with all the agreements and satisfied all the conditions on
its part to be performed or satisfied as a condition to the
obligation of the Agents to solicit offers to purchase the
Notes;
(ii) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings
for that purpose have been instituted or, to the Company's
knowledge, threatened; and
(iii) since the date of the most recent financial
statements included in the Prospectus (exclusive of any
supplement thereto dated after the Execution Time), there has
been no material adverse change in the condition (financial or
other), earnings, business or properties of the Company and
its subsidiaries, whether or not arising from transactions in
the ordinary course of business, except as set forth in or
contemplated in the Prospectus (exclusive of any supplement
thereto dated after the Execution Time).
(f) At the Execution Time, Deloitte & Touche LLP shall have
furnished to each Agent a letter or letters (which may refer to letters
previously delivered to the Agents), dated as of the Execution Time, in form and
substance satisfactory to the Agents, confirming that they are independent
accountants within the meaning of the Act and the Exchange Act and the
respective applicable published rules and regulations thereunder and stating in
effect that:
(i) in their opinion the audited financial
statements, financial statement schedules and pro forma
financial statements, if any, included or incorporated in the
Registration Statement and the Prospectus and reported on by
them comply in form in all material respects with the
applicable accounting requirements of the Act and the Exchange
Act and the related published rules and regulations;
(ii) on the basis of a reading of the latest
unaudited consolidated financial statements made available by
the Company; carrying out certain specified procedures (but
not an examination in accordance with generally accepted
auditing standards) which would not necessarily reveal matters
of significance with respect to the comments set forth in such
letter; a reading of the minutes of the meetings of the
stockholders, directors and executive committee of the Company
and the Subsidiaries; and inquiries of certain officials of
the Company who have responsibility for financial and
accounting matters of the Company and its subsidiaries as to
transactions and events subsequent to the date of the most
recent audited financial statements included or incorporated
in the Prospectus, nothing came to their attention which
caused them to believe that:
(1) any unaudited consolidated financial
statements included or incorporated in the
Registration Statement and the Prospectus do not
comply in form in all material respects with
applicable accounting requirements and with the
published rules and regulations of the Commission
with respect to financial statements included or
incorporated in quarterly reports on Form 10-Q under
the Exchange Act; and said unaudited financial
statements are not in conformity with generally
accepted accounting principles applied on a basis
substantially consistent with that of the audited
financial statements included or incorporated in the
Registration Statement and the Prospectus;
(2) with respect to the period subsequent to
the date of the most recent consolidated financial
statements (other than any capsule information),
audited or unaudited, in or incorporated by reference
in the Registration Statement and the Prospectus,
there were any changes, at a specified date not more
than five business days prior to the date of the
letter, in the long-term debt, common equity or
preferred stock (not subject to purchase or sinking
funds) of the Company and its subsidiaries, or
decreases in the stockholders' investment of the
Company and its subsidiaries, as compared with the
amounts shown on the most recent consolidated balance
sheet included or incorporated in the Registration
Statement and the Prospectus, or for the period from
the date of the most recent financial statements
included or incorporated in the Registration
Statement and the Prospectus to such specified date
there were any decreases, as compared with the
corresponding period in the preceding year in
operating revenues or operating income or income
before interest charges or in total or per share
amounts of net income of the Company and its
subsidiaries, except in all instances for changes or
decreases set forth in such letter, in which case the
letter shall be accompanied by an explanation by the
Company as to the significance thereof unless said
explanation is not deemed necessary by the Agents; or
(3) the amounts included under the caption
"Summary Consolidated Financial and Operating
Information" in the Prospectus, were not determined
on a basis substantially consistent with that of the
corresponding amounts in the audited financial
statements included or incorporated in the
Registration Statement and the Prospectus;
(iii) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature
(which is limited to accounting, financial or statistical
information derived from the general accounting records of the
Company and its subsidiaries) set forth in the Registration
Statement and the Prospectus, including certain of the
information included or incorporated in Items 1, 6, 7, 10 and
11 of the Company's Annual Report on Form 10-K, incorporated
in the Registration Statement and the Prospectus, certain of
the information included in the "Management's Discussion and
Analysis of Financial Condition and Results of Operations"
included or incorporated in the Company's Quarterly Reports on
Form 10-Q, incorporated in the Registration Statement and the
Prospectus, and the information included in the Prospectus
under the captions "Ratio of Earnings to Fixed Charges" and
"Summary Consolidated Financial and Operating Information,"
agrees with the accounting records of the Company and its
subsidiaries, excluding any questions of legal interpretation;
and
(iv) if unaudited pro forma financial statements are
included or incorporated in the Registration Statement and the
Prospectus, on the basis of a reading of the unaudited pro
forma financial statements, carrying out certain specified
procedures, inquiries of certain officials of the Company and
its subsidiaries (including any entity which is acquired, by
merger or otherwise, after the Execution Time, and including
any entity which is the subject of any contract to acquire, by
merger or otherwise, on the date of such financial statements)
who have responsibility for financial and accounting matters,
and proving the arithmetic accuracy of the application of the
pro forma adjustments to the historical amounts in the pro
forma financial statements, nothing came to their attention
which caused them to believe that the pro forma financial
statements do not comply in form in all material respects with
the applicable accounting requirements of Rule 11-02 of
Regulation S-X or that the pro forma adjustments have not been
properly applied to the historical amounts in the compilation
of such statements.
References to the Prospectus in this paragraph (f) include any
supplement thereto at the date of the letter.
(g) Prior to the Execution Time, the Company shall have
furnished to each Agent such further information, documents, certificates,
letters from accountants and opinions of counsel as the Agents may reasonably
request.
If any of the conditions specified in this Section 5 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to such Agents and their counsel, this Agreement and all
obligations of any Agent hereunder may be canceled at any time by the Agents.
Notice of such cancellation shall be given to the Company in writing or by
telephone or telegraph confirmed in writing.
The documents required to be delivered by this Section 5 shall be
delivered at the office of Thelen Reid & Priest LLP, counsel for the Agents, at
40 West 57th Street, New York, New York 10019, at the Execution Time.
6. Conditions to the Obligations of the Purchaser.
The obligations of the Purchaser to purchase any Notes will be subject
to the accuracy of the representations and warranties on the part of the Company
herein as of the date of any related Terms Agreement and as of the Closing Date
for such Notes, to the performance and observance by the Company of all
covenants and agreements herein contained on its part to be performed and
observed and to the following additional conditions precedent:
(a) No stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and no
proceedings for that purpose shall have been instituted or threatened, or, to
the knowledge of the Company or any Agent, be contemplated by the Commission.
(b) If specified by any related Terms Agreement and except to
the extent modified by such Terms Agreement, the Purchaser shall have received,
appropriately updated, (i) a certificate of the Company, dated as of the Closing
Date, to the effect set forth in Section 5(e) (except that references to the
Prospectus shall be to the Prospectus as supplemented at the time of execution
of the Terms Agreement), (ii) the opinion of the General Counsel, or an
Associate General Counsel for the Company designated by the General Counsel,
dated as of the Closing Date, to the effect set forth in Section 5(b), (iii) the
opinion of McNair Law Firm, P.A., counsel for the Company, dated as of the
Closing Date, to the effect set forth in Section 5(c), (iv) the opinion of
Thelen Reid & Priest LLP, counsel for the Purchaser, dated as of the Closing
Date, to the effect set forth in Section 5(d), and (v) a letter of Deloitte &
Touche LLP, independent accountants for the Company, dated as of the Closing
Date, to the effect set forth in Section 5(f).
(c) Prior to the Closing Date, the Company shall have
furnished to the Purchaser such further information, certificates and documents
as the Purchaser may reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement
and any Terms Agreement, or if any of the opinions and certificates mentioned
above or elsewhere in this Agreement or such Terms Agreement shall not be in all
material respects reasonably satisfactory in form and substance to the Purchaser
and its counsel, such Terms Agreement and all obligations of the Purchaser
thereunder and with respect to the Notes subject thereto may be canceled at, or
at any time prior to, the respective Closing Date by the Purchaser. Notice of
such cancellation shall be given to the Company in writing or by telephone or
telegraph confirmed in writing.
7. Right of Person Who Agreed to Purchase to Refuse to Purchase.
(a) The Company agrees that any person who has agreed to
purchase and pay for any Note, including a Purchaser and any person who
purchases pursuant to a solicitation by any of the Agents, shall have the right
to refuse to purchase such Note if, at the Closing Date therefor, any condition
set forth in Section 5 or 6, as applicable, shall not be satisfied in all
material respects.
(b) The Company agrees that any person who has agreed to
purchase and pay for any Note pursuant to a solicitation by any of the Agents
shall have the right to refuse to purchase such Note if, subsequent to the
agreement to purchase such Note, any change, condition or development specified
in any of the Sections 9 (b) (i) through (v) shall have occurred (without regard
to any judgment of a Purchaser required therein) the effect of which is, in the
judgment of the Agent which presented the offer to purchase such Note, so
material and adverse as to make it impractical or inadvisable to proceed with
the delivery of such Note (it being understood that under no circumstance shall
any such Agent have any duty or obligation to exercise the judgment permitted to
be exercised under this Section 7(b) and Section 9(b)).
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each of
you, the directors, officers, employees and agents of each of you and each
person who controls each of you within the meaning of either the Act or the
Exchange Act against any and all losses, claims, damages or liabilities, joint
or several, to which you, they or any of you or them may become subject under
the Act, the Exchange Act or other federal or state statutory law or regulation,
at common law or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement for the registration of the Notes as originally filed or
in any amendment thereof, or in the Prospectus or any preliminary Prospectus, or
in any amendment thereof or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and agrees to reimburse each such indemnified party for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action, as incurred;
provided, however, that (i) the Company will not be liable in any such case to
the extent that any such loss, claim, damage or liability arises out of or is
based upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with written
information furnished to the Company by any of you specifically for use in
connection with the preparation thereof, and (ii) such indemnity with respect to
the Prospectus or any preliminary Prospectus shall not inure to the benefit of
any of you (or any person controlling any of you) from whom the person asserting
any such loss, claim, damage or liability purchased the Notes which are the
subject thereof if such person did not receive a copy of the Prospectus (or the
Prospectus as supplemented) excluding documents incorporated therein by
reference at or prior to the confirmation of the sale of such Notes to such
person in any case where such delivery is required by the Act and the untrue
statement or omission of a material fact contained in the Prospectus or any
preliminary Prospectus was corrected in the Prospectus (or the Prospectus as
supplemented). This indemnity agreement will be in addition to any liability
which the Company may otherwise have.
(b) Each of you agrees to indemnify and hold harmless the Company, each of
its directors, each of its officers who signs the Registration Statement and
each person who controls the Company within the meaning of either the Act or the
Exchange Act, to the same extent as the foregoing indemnity from the Company to
you, but only with reference to written information relating to such of you
furnished to the Company by such of you specifically for use in the preparation
of the documents referred to in the foregoing indemnity. This indemnity
agreement will be in addition to any liability which you may otherwise have. The
Company acknowledges that the statements set forth in the third and fourth
paragraphs under the heading "Plan of Distribution" in the Prospectus,
constitute the only information furnished in writing by any of you for inclusion
in the documents referred to in the foregoing indemnity, and you confirm that
such statements are correct.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under this Section 8. In case any such action is brought against
any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein, and to the extent that it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof, with counsel satisfactory to
such indemnified party; provided, however, that if the defendants in any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate counsel to assert such
legal defenses and to otherwise participate in the defense of such action on
behalf of such indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of its election so to assume the
defense of such action and approval by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party under this
Section 8 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the next preceding
sentence (it being understood, however, that the indemnifying party shall not be
liable for the expenses of more than one separate counsel, approved by you in
the case of paragraph (a) of this Section 8, representing the indemnified
parties under such paragraph (a) who are parties to such action), (ii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of commencement of the action or (iii) the indemnifying party has
authorized the employment of counsel for the indemnified party at the expense of
the indemnifying party; and except that, if clause (i) or (iii) is applicable,
such liability shall be only in respect of the counsel referred to in such
clause (i) or (iii).
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph (a) of this
Section 8 is due in accordance with its terms but is for any reason held by a
court to be unavailable from the Company on grounds of policy or otherwise, the
Company and each of you shall contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably incurred
in connection with investigating or defending same) to which the Company and any
of you may be subject in such proportion so that each of you is responsible for
that portion represented by the percentage that the aggregate commissions
received by such of you pursuant to Section 2 in connection with the Notes from
which such losses, claims, damages and liabilities arise (or, in the case of
Notes sold pursuant to a Terms Agreement, the aggregate commissions that would
have been received by such of you if such commissions had been payable), bears
to the aggregate principal amount of such Notes sold and the Company is
responsible for the balance; provided, however, that (y) in no case shall any of
you be responsible for any amount in excess of the commissions received by such
of you in connection with the Notes from which such losses, claims, damages and
liabilities arise (or, in the case of Notes sold pursuant to a Terms Agreement,
the aggregate commissions that would have been received by such of you if such
commissions had been payable) and (z) no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person who controls any
of you within the meaning of the Act shall have the same rights to contribution
as you and each person who controls the Company within the meaning of either the
Act or the Exchange Act, each officer of the Company who shall have signed the
Registration Statement and each director of the Company shall have the same
rights to contribution as the Company, subject in each case to clause (z) of
this paragraph (d). Any party entitled to contribution will, promptly after
receipt of notice of commencement of any action, suit or proceeding against such
party in respect of which a claim for contribution may be made against another
party or parties under this paragraph (d), notify such party or parties from
whom contribution may be sought, but the omission to so notify such party or
parties shall not relieve the party or parties from whom contribution may be
sought from any other obligation it or they may have hereunder or otherwise than
under this paragraph (d).
9. Termination.
This Agreement will continue in effect until terminated as provided in
this Section 9. In the event of such termination, no party shall have any
liability to the other party hereto, except as provided in the fourth and sixth
paragraphs of Section 2(a), and in Sections 4(h), 8 and 10.
(a) This Agreement may be terminated by either the Company as
to any of you or by any of you insofar as this Agreement relates to such of you,
by giving written notice of such termination to such of you or the Company, as
the case may be. This Agreement shall so terminate at the close of business on
the first business day following the receipt of such notice by the party to whom
such notice is given.
(b) Each Terms Agreement (whether oral or written) shall be
subject to termination in the absolute discretion of the Purchaser, by notice
given to the Company prior to delivery of any payment for any Note to be
purchased thereunder, if prior to such time (i) there shall have occurred,
subsequent to the agreement to purchase such Note, any change, or any
development involving a prospective change, in or affecting the business or
properties of the Company and its subsidiaries the effect of which is, in the
judgment of the Purchaser, so material and adverse as to make it impractical or
inadvisable to proceed with the delivery of such Note, (ii) there shall have
been, subsequent to the agreement to purchase such Note, any decrease in the
rating of any of the Company's debt securities by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule 436(g) under
the Act) or any notice given of any intended or potential decrease in any such
rating or of a possible change in any such rating that does not indicate the
direction of the possible change, (iii) trading in the Company's Common Stock
shall have been suspended by the Commission or the New York Stock Exchange or
trading in securities generally on the New York Stock Exchange shall have been
suspended or limited or minimum prices shall have been established on such
Exchange, (iv) a banking moratorium shall have been declared either by federal
or New York state authorities, or (v) there shall have occurred any outbreak or
escalation of hostilities, declaration by the United States of a national
emergency or war or other calamity or crisis the effect of which on financial
markets is such as to make it, in the judgment of the Purchaser, impracticable
or inadvisable to proceed with the offering or delivery of such Notes as
contemplated by the Prospectus (exclusive of any supplement thereto.)
10. Representations and Indemnities to Survive.
The respective agreements, representations, warranties, indemnities and
other statements of the Company or its officers and of you set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation made by or on behalf of you or the Company or any of the
officers, directors or controlling persons referred to in Section 8 hereof, and
will survive delivery of and payment for the Notes. The provisions of the fourth
and sixth paragraphs of Section 2(a) and of Sections 4(h) and 8 hereof shall
survive the termination or cancellation of this Agreement. The provisions of
this Agreement (including without limitation Section 7 hereof) applicable to any
purchase of a Note for which an agreement to purchase exists prior to the
termination hereof shall survive any termination of this Agreement.
11. Notices.
All communications hereunder will be in writing and effective only on
receipt, and, if sent to any of you, will be mailed, delivered, telecopied or
telegraphed and confirmed to such of you, at the address specified in Schedule I
hereto; or, if sent to the Company, will be mailed, delivered or telegraphed and
confirmed to it at 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.
<PAGE>
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:
Banc of America Securities LLC
By:
Its:
<PAGE>
EXHIBIT C
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 Banc of America Securities LLC shall be directed to it at
Bank of America Corporate Center, 100 North Tryon Street; NC1-007-07-01,
Charlotte, North Carolina 28255.
82
Exhibit 5.01
November 1, 1999
Securities and Exchange Commission
450 Fifth Street, NW
Washington, DC 20549
Gentlemen:
I refer to the proposed issue and sale of up to $1,000,000,000
principal amount of Medium-Term Notes (the "Notes"), to be issued from time to
time, by SCANA Corporation (the "Company"), with respect to which the Company
has filed a Registration Statement on Form S-3 with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, and Rule 415 thereof.
In connection therewith, I have examined (a) the Registration
Statement, filed November 1, 1999 (the "Registration Statement"), to which this
opinion is an exhibit; (b) the Indenture dated as of November 1, 1989 (the
"Indenture"), made by SCANA Corporation to The Bank of New York as Trustee,
incorporated by reference in the Registration Statement; and (c) such other
corporate documents, proceedings and questions of law as I have considered
necessary.
Based on the foregoing, I am of the opinion that, with respect to the
Notes, when (a) the Registration Statement, and any subsequent amendments
thereto, have become effective under the Securities Act of 1933, as amended, (b)
the Indenture has been qualified under the Trust Indenture Act of 1939, as
amended, (c) the Board of Directors of the Company has authorized the issuance
and sale of the Notes, (d) a pricing supplement relating to the Notes has been
filed with, or mailed for filing to, the Securities and Exchange Commission, (e)
any required approvals relating to the Notes by the Securities and Exchange
Commission under the Public Utility Holding Company Act of 1935, as amended,
shall have been granted, and (f) the Notes have been duly executed,
authenticated, issued and delivered in accordance with the corporate
authorizations aforesaid, the Notes will be duly authorized and will constitute
legal, valid and binding obligations of the Company, subject as to
enforceability to applicable bankruptcy, insolvency, reorganization or other
laws of general applicability relating to or affecting creditors' rights
generally and general equitable principles, and will be entitled to the benefits
and security of the Indenture.
I hereby consent to filing of this opinion with the Registration
Statement and to the use of my name under the caption "Validity of the Notes"
included therein.
Sincerely,
s/H. Thomas Arthur, II
H. Thomas Arthur, II
Senior Vice President, General
Counsel and Assistant Secretary
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT 12.01
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
YEARS ENDED DECEMBER 31, 1998, 1997, 1996, 1995 AND 1994
AND TWELVE MONTHS ENDED SEPTEMBER 30, 1999
(Dollars in Millions)
Twelve Months Ended Years Ended December 31,
September 30,
1999 1998 1997 1996 1995 1994
------- ------------- ------------- ------------- ---------------
Earnings:
<S> <C> <C> <C> <C> <C> <C>
Net Income (before Pref. Dividends) $166.8 $230.9 $230.0 $220.7 $174.0 $121.4
Add Provisions for Income Taxes 97.5 131.1 113.6 119.1 99.1 62.5
Fixed Charges (per below) 146.8 135.4 130.3 130.5 136.3 118.3
Total Earnings (as defined by Reg. S-K) $411.1 $497.4 $473.9 $470.3 $409.4 302.2
Fixed Charges:
Interest on Long-Term Debt $ 125.9 $118.1 $113.6 $112.3 $113.9 $106.6
Other Interest Expense 13.4 10.0 11.7 13.3 17.1 6.8
Amort. of Debt Disc. & Exp., Net 2.9 2.7 2.6 2.6 2.5 2.2
Rentals Interest Portion 0.8 0.8 1.7 2.3 2.8 2.7
Trust Preferred 3.8 3.8 0.7 - - -
Total Fixed Charges (as defined by Reg. S-K) $146.8 $135.4 $130.3 $130.5 $136.3 $118.3
Coverage Ratio (Earnings/Fixed Charges) 2.80 3.67 3.64 3.60 3.00 2.55
</TABLE>
Exhibit 23.01
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of SCANA Corporation on Form S-3 of our report dated February 8, 1999 (February
17, 1999 as to Note 13), appearing in the Annual Report on Form 10-K of SCANA
Corporation for the year ended December 31, 1998 and to the reference to us
under the heading "Experts" in the Prospectus, which is part of this
Registration Statement.
s/Deloitte & Touche
DELOITTE & TOUCHE LLP
Columbia, South Carolina
November 1, 1999
Exhibit 24.01
POWER OF ATTORNEY
Each of the undersigned directors of SCANA Corporation (the "Company"),
hereby appoint W. B. Timmerman and Kevin B. Marsh, and each of them severally,
his or her true and lawful attorney or attorney's, with the power to act with or
without the other, and with full power of substitution and re-substitution, to
execute in his or her name, place and stead in his or her capacity as director
of the Company and to file with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, a registration statement on Form S-3 and any
and all amendments thereto with respect to the issuance and sale of up to
$700,000,000 of the Company's medium term notes.
Dated: August 31, 1999
Columbia, South Carolina
s/B. L. Amick s/W. H. Hipp
B. L. Amick W. H. Hipp
Director Director
s/J. A. Bennett s/L. M. Miller
J. A. Bennett L. M. Miller
Director Director
s/W. B. Bookhart, Jr. s/J. B. Rhodes
W. B. Bookhart, Jr. J. B. Rhodes
Director Director
s/H. M. Chapman s/M. K. Sloan
H. M. Chapman M. K. Sloan
Director Director
s/E. T. Freeman s/H. C. Stowe
E. T. Freeman H. C. Stowe
Director Director
s/L. M. Gressette, Jr. s/W. B. Timmerman
L. M. Gressette, Jr. W. B. Timmerman
Director Director
s/D. M. Hagood
D. M. Hagood
Director
<PAGE>
Exhibit 24.02
POWER OF ATTORNEY
Each of the undersigned directors of SCANA Corporation (the "Company"),
hereby appoint W. B. Timmerman and Kevin B. Marsh, and each of them severally,
his or her true and lawful attorney or attorney's, with the power to act with or
without the other, and with full power of substitution and re-substitution, to
execute in his or her name, place and stead in his or her capacity as director
of the Company and to file with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, a registration statement on Form S-3 and any
and all amendments thereto with respect to the issuance and sale of up to
$300,000,000 of the Company's medium term notes.
Dated: August 31, 1999
Columbia, South Carolina
s/B. L. Amick s/W. H. Hipp
B. L. Amick W. H. Hipp
Director Director
s/J. A. Bennett s/L. M. Miller
J. A. Bennett L. M. Miller
Director Director
s/W. B. Bookhart, Jr. s/J. B. Rhodes
W. B. Bookhart, Jr. J. B. Rhodes
Director Director
s/H. M. Chapman s/M. K. Sloan
H. M. Chapman M. K. Sloan
Director Director
s/E. T. Freeman s/H. C. Stowe
E. T. Freeman H. C. Stowe
Director Director
s/L. M. Gressette, Jr. s/W. B. Timmerman
L. M. Gressette, Jr. W. B. Timmerman
Director Director
s/D. M. Hagood
D. M. Hagood
Director
========================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
SCANA CORPORATION
(Exact name of obligor as specified in its charter)
South Carolina 57-0248695
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
1426 Main Street
Columbia, South Carolina 29201
(Address of principal executive offices) (Zip code)
-------------
Medium Term Notes
(Title of the indenture securities)
========================================================================
<PAGE>
1. General information. Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission,
are incorporated herein by reference as an exhibit hereto, pursuant to
Rule 7a-29 under the Trust Indenture Act of 1939 (the "Act") and 17
C.F.R.
229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains
the authority to commence business and a grant of powers to
exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to
Form T-1 filed with Registration Statement No. 33-6215, Exhibits
1a and 1b to Form T-1 filed with Registration Statement No.
33-21672 and Exhibit 1 to Form T-1 filed with Registration
Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form
T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or
examining authority.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 28th day of October, 1999.
THE BANK OF NEW YORK
By: /s/ MARY LAGUMINA
Name: MARY LAGUMINA
Title: ASSISTANT VICE PRESIDENT
- -------------------------------------------------------------------------------
<PAGE>
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business June 30, 1999,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS In Thousands Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin.. $5,597,807
Interest-bearing balances........................... 4,075,775
Securities:
Held-to-maturity securities......................... 785,167
Available-for-sale securities....................... 4,159,891
Federal funds sold and Securities purchased under
agreements to resell................................ 2,476,963
Loans and lease financing receivables:
Loans and leases, net of unearned
income...............38,028,772
LESS: Allowance for loan and
lease losses............568,617
LESS: Allocated transfer risk
reserve........................16,352
Loans and leases, net of unearned income,
allowance, and reserve............................ 37,443,803
Trading Assets......................................... 1,563,671
Premises and fixed assets (including capitalized
leases)............................................. 683,587
Other real estate owned................................ 10,995
Investments in unconsolidated subsidiaries and
associated companies................................ 184,661
Customers' liability to this bank on acceptances
outstanding......................................... 812,015
Intangible assets...................................... 1,135,572
Other assets........................................... 5,607,019
Total assets........................................... $64,536,926
LIABILITIES
Deposits:
In domestic offices................................. $26,488,980
Noninterest-bearing.......................10,626,811
Interest-bearing..........................15,862,169
In foreign offices, Edge and Agreement
subsidiaries, and IBFs............................ 20,655,414
Noninterest-bearing..........................156,471
Interest-bearing..........................20,498,943
Federal funds purchased and Securities sold under
agreements to repurchase............................ 3,729,439
Demand notes issued to the U.S.Treasury................ 257,860
Trading liabilities.................................... 1,987,450
Other borrowed money:
With remaining maturity of one year or less......... 496,235
With remaining maturity of more than one year
through three years............................... 465
With remaining maturity of more than three years.... 31,080
Bank's liability on acceptances executed and
outstanding......................................... 822,455
Subordinated notes and debentures...................... 1,308,000
Other liabilities...................................... 2,846,649
Total liabilities...................................... 58,624,027
EQUITY CAPITAL
Common stock........................................... 1,135,284
Surplus................................................ 815,314
Undivided profits and capital reserves................. 4,001,767
Net unrealized holding gains (losses) on
available-for-sale securities....................... (7,956)
Cumulative foreign currency translation adjustments....
(31,510)
Total equity capital................................... 5,912,899
Total liabilities and equity capital................... $64,536,926
- ---------------------------------------------------------------
I, Thomas J. Mastro, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
==============================================================================
Thomas J. Mastro
We, the undersigned directors, attest to the correctness of this Report
of Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
Thomas A. Reyni
Alan R. Griffith Directors
Gerald L. Hassell
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