TECO ENERGY, INC.
$200,000,000
Medium-Term Note Program
Due from 9 Months to 40 Years from Date of Issue
AGENCY AGREEMENT
[August ], 1998
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Citicorp Securities, Inc.
000 Xxxx Xxxxxx
0xx Xxxxx, Xxxx 0
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentleman:
TECO Energy, Inc., a Florida corporation (the "Company"), confirms its
agreement with each of you with respect to the issue and sale from time to time
by the Company of up to $200,000,000 (or the equivalent thereof in one or more
foreign currencies or composite currencies) aggregate initial public offering
price of its medium-term notes due from 9 months to 40 years from date of issue
(the "Notes"). The Notes will be issued under an Indenture dated as of August
17, 1998 (the "Base Indenture") between the Company and The Bank of New York, as
Trustee (the "Trustee"), and will have the maturities, interest rates,
redemption provisions, if any, and other terms as set forth in indentures
supplemental to the Base Indenture (each, a "Supplemental Indenture," the Base
Indenture as amended by such Supplemental Indentures referred to herein as the
"Indenture").
The Company hereby appoints Xxxxxx Xxxxxxx & Co. Incorporated and Citicorp
Securities, Inc. (individually an "Agent" and collectively the "Agents") as its
agents, subject to Section 8, Section 11 and the Company's right to sell Notes
directly to investors without the use of agents for the purpose of soliciting
and receiving offers to purchase Notes from the Company by others and, on the
basis of the representations and warranties herein contained, but subject to
the terms and conditions herein set forth, each Agent agrees to use reasonable
efforts to solicit and receive offers to purchase Notes upon terms acceptable to
the Company at such times and in such amounts as the Company shall from time to
time specify. In addition, any Agent may also purchase Notes as principal
pursuant to the terms of a purchase agreement relating to such sale (a "Purchase
Agreement") in accordance with the provisions of Section 2(b) hereof.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement, including a prospectus, relating to the
Notes. Such registration statement, including the exhibits thereto and any
amendments thereto, is hereinafter referred to as the "Registration Statement."
The Company proposes to file with the Commission from time to time, pursuant to
Rule 424 under the Securities Act of 1933, as amended (the "Securities Act"),
supplements to the prospectus included in the Registration Statement that will
describe certain terms of the Notes. The prospectus in the form in which it
appears in the Registration Statement is hereinafter referred to as the "Base
Prospectus." The term "Prospectus" means the Base Prospectus together with the
prospectus supplement or supplements (each a "Prospectus Supplement")
specifically relating to Notes, as filed with, or transmitted for filing to, the
Commission pursuant to Rule 424. As used herein, the terms "Base Prospectus"
and "Prospectus" shall include in each case the documents, if any, incorporated
by reference therein. The terms "supplement," "amendment" and "amend" as used
herein shall include all documents deemed to be incorporated by reference in the
Prospectus that are filed subsequent to the date of the Base Prospectus by the
Company with the Commission pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act").
1. Representations and Warranties. The Company represents and warrants
to and agrees with each Agent as of the Commencement Date (as defined below), as
of each date on which an Agent solicits offers to purchase Notes from the
Company, as of each date on which the Company accepts an offer to purchase Notes
(including any purchase by an Agent pursuant to a Purchase Agreement), as of
each date the Company issues and delivers Notes, and as of each date the
Registration Statement or the Base Prospectus is amended or supplemented, as
follows (it being understood that such representations, warranties and
agreements shall be deemed to relate to the Registration Statement, the Base
Prospectus and the Prospectus, each as amended or supplemented to each such
date):
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or threatened by the
Commission.
(b) (i) Each document filed or to be filed pursuant to the Exchange
Act and incorporated by reference in the Prospectus, on the date it was or
is filed with the Commission, (A) complied or will comply in all material
respects with the Exchange Act and the applicable rules and regulations of
the Commission thereunder and (B) did not contain and will not contain any
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not
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misleading, (ii) each part of the Registration Statement, when such part
became effective, did not contain and each such part, as amended or
supplemented, if applicable, when so amended or supplemented, will not
contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading, (iii) the Registration Statement, on the date it
was declared effective, and the Prospectus, as of the date of the Base
Prospectus, complied and, as amended or supplemented, if applicable, on the
date of such Amendment or Supplement, will comply in all material respects
with the Securities Act and the applicable rules and regulations of the
Commission thereunder, and (iv) the Prospectus does not contain and, as
amended or supplemented, if applicable, on the date of such Amendment or
Supplement, will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
provided, however, that (1) the representations and warranties set forth in
this paragraph do not apply (x) to statements or omissions in the
Registration Statement or the Prospectus based upon information relating to
an Agent furnished to the Company in writing by such Agent expressly for
use therein or (y) to that part of the Registration Statement that
constitutes the Statement of Eligibility (Form T-1) under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), of the
Trustee and (2) the representations and warranties set forth in clauses
1(b)(ii) and 1(b)(iv) above, when made as of the Commencement Date or as of
any date on which an Agent solicits offers to purchase Notes from the
Company or on which the Company accepts an offer to purchase Notes, shall
be deemed not to cover information concerning an offering of particular
Notes to the extent such information will be set forth in a supplement to
the Base Prospectus;
(c) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of Florida, and
has the power and authority (corporate and otherwise) to own its property
and to conduct its business as described in the Prospectus;
(d) Each of the Company's "significant subsidiaries" (as defined in
Rule 1-02(w) of Regulation S-X of the Exchange Act) is a corporation
duly incorporated and validly existing in good standing under the laws of
the State of Florida, and has full power and authority (corporate and
other) to own its properties and to conduct its business as described in
the Registration Statement and Prospectus;
(e) All of the issued shares of capital stock of each of the
Company's significant subsidiaries have been duly authorized and validly
issued, are fully paid and nonassessable and are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances and
claims.
(f) Each of the Company and its subsidiaries is duly qualified as a
foreign corporation in all jurisdictions where it owns or leases
substantial real properties or in
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which the conduct of its business requires qualification as a foreign
corporation and in which the failure to so qualify could have a material
adverse effect on the business, financial condition or prospects of the
Company and its subsidiaries taken as a whole;
(g) The Company has full power and lawful authority to authorize,
execute and deliver this Agreement and any applicable Purchase Agreement
(as hereinafter defined) on the terms and conditions set forth herein and
therein and the Agreement and any applicable Purchase Agreement have been
duly authorized, executed and delivered by the Company;
(h) The Indenture has been duly qualified under the Trust Indenture
Act and has been duly authorized, executed and delivered by the Company and
is a valid and binding agreement of the Company, enforceable in accordance
with its terms;
(i) The Notes have been duly authorized and, when executed and
authenticated in accordance with the provisions of the Indenture and
delivered to and paid for by the purchasers thereof, will be entitled to
the benefits of the Indenture and will be valid and binding obligations of
the Company;
(j) The execution and delivery by the Company of, and the performance
by the Company of its obligations under, this Agreement, the Notes, the
Indenture and any applicable Purchase Agreement will not result in a breach
of or constitute a default under nor will it violate the provisions of any
indenture, mortgage, deed of trust, agreement, or other instrument to which
the Company is a party or by which it or any of its property is bound nor
will it violate the provisions of the Restated Articles of Incorporation or
by-laws of the Company or any statute, or any order, rule or regulation, to
the extent applicable to the Company, of any court or other governmental or
regulatory body and no consent, approval, authorization or order of, or
qualification with, any governmental or regulatory body, including the
Florida Public Service Commission, is required for the performance by the
Company of its obligations under this Agreement, the Notes, the Indenture
and any applicable Purchase Agreement, except, as have been obtained and
except such as may be required by the securities or Blue Sky laws of the
various states in connection with the offer and sale of the Notes;
(k) There has not occurred any material adverse change in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from that
set forth in the Prospectus;
(l) The financial statements of the Company, together with related
notes, incorporated in the Registration Statement and the Prospectus
present fairly, in accordance with generally accepted accounting principles
consistently applied (except as stated therein and except the notes to the
interim financial statements), the financial
4
position and the results of operations of the Company and its predecessors
at the dates and for the respective periods to which they apply;
(m) The Company is not and, after giving effect to the offering and
sale of the Notes and the application of the proceeds thereof as described
in the Prospectus, will not be an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended;
(n) The Company has filed an appropriate exemption statement pursuant
to the provisions of the Public Utility Holding Company Act of 1935 (the
"1935 Act") and is exempt from all provisions of the 1935 Act except
Section 9(a)(2)thereof relating to the acquisition of securities of other
public utility companies. The Company is not subject to the jurisdiction
of the Florida Public Service Commission with respect to the issue and sale
of the Notes.
(o) PricewaterhouseCoopers LLP, successor to Coopers & Xxxxxxx LLP
who have certified financial statements of the Company, are independent
public accountants as required by the Securities Act and the rules and
regulations of the Commission thereunder; and
(p) The Company has complied with all provisions of Section 517.075,
Florida Statutes relating to doing business with the Government of Cuba or
with any person or affiliate located in Cuba.
2. Solicitations as Agent; Purchases as Principal.
(a) Solicitations as Agent. In connection with an Agent's actions as
agent hereunder, such Agent agrees to use reasonable efforts to solicit
offers to purchase Notes upon the terms and conditions set forth in the
Prospectus as then amended or supplemented.
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 Notes. Upon receipt of notice from
the Company, the Agents will forthwith suspend solicitations of offers to
purchase Notes from the Company until such time as the Company has advised
the Agents that such solicitation may be resumed. While such solicitation
is suspended, the Company shall not be required to deliver any
certificates, opinions or letters in accordance with Sections 5(a), 5(b)
and 5(c); provided, however, that if the Registration Statement or
Prospectus is amended or supplemented during the period of suspension
(other than by an amendment or supplement providing solely for a change in
the interest rates, redemption provisions, amortization schedules or
maturities offered on the Notes or for a change the Agents deem to be
immaterial), no Agent shall
5
be required to resume soliciting offers to purchase Notes until the Company
has delivered such certificates, opinions and letters as such Agent may
reasonably request.
The Company agrees to pay to each Agent, as consideration for the sale
of each Note resulting from a solicitation made or an offer to purchase
received by such Agent, a commission in the form of a discount from the
purchase price of such Note equal to the percentage set forth below of the
purchase price of such Note:
Commission
Term Rate
---- ----------
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 to less than 30 years .750%
30 years and beyond Subject to
negotiation
Each Agent shall communicate to the Company, orally or in writing,
each offer to purchase Notes received by such Agent as agent that in its
judgment should be considered by the Company. The Company shall have
the sole right to accept offers to purchase Notes and may reject any
offer in whole or in part. Each Agent shall have the right to reject
any offer to purchase Notes that it considers to be unacceptable, and
any such rejection shall not be deemed a breach of its agreements
contained herein. The procedural details relating to the issue and
delivery of Notes sold by the Agents as agents and the payment therefor
shall be as set forth in the Supplemental Indenture relating to such
Notes. Additional procedural details relating to such Notes may be set
forth in one or more letter agreements between the Company and the
Trustee.
(b) Purchases as Principal. Each sale of Notes to an Agent as
principal shall be made in accordance with the terms of this Agreement.
In connection with each such sale, the Company will enter into a
Purchase Agreement that will provide for the sale of such Notes to and
the purchase thereofby such Agent. Each Purchase Agreement will
6
take the form of a written agreement between such Agent and the Company,
which may be substantially in the form of Exhibit A hereto (a "Purchase
Agreement").
An Agent's commitment to purchase Notes pursuant to a Purchase
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. Each Purchase
Agreement shall specify the principal amount of Notes to be purchased by
such Agent pursuant thereto, the maturity date of such Notes, the price
to be paid to the Company for such Notes, the interest rate and interest
rate formula, if any, applicable to such Notes and other terms of such
Notes. Each such Purchase Agreement may also specify any requirements
for officers' certificates, opinions of counsel and letters from the
independent public accountants of the Company pursuant to Section 4
hereof. A Purchase Agreement may also specify certain provisions
relating to the reoffering of such Notes by such Agent.
Each Purchase Agreement shall specify the time and place of
delivery of and payment for such Notes. Unless otherwise specified in a
Purchase Agreement, the procedural details relating to the issue and
delivery of Notes purchased by an Agent as principal and the payment
therefor shall be as set forth in the Supplemental Indenture relating to
such Notes. Additional procedural details relating to such Notes may be
set forth in one or more letter agreements between the Company and the
Trustee. Each date of delivery of and payment for Notes to be purchased
by an Agent pursuant to a Purchase Agreement is referred to herein as a
"Settlement Date."
Unless otherwise specified in a Purchase Agreement, if you are
purchasing Notes as principal you may resell such Notes to other
dealers. Any such sales may be at a discount, which shall not exceed the
amount set forth in the Prospectus Supplement relating to such Notes.
(c) Delivery. The documents required to be delivered by Section 4
of this Agreement as a condition precedent to each Agent's obligation to
begin soliciting offers to purchase Notes as an agent of the Company
shall be delivered at the office of Ropes & Gray, counsel for the
Agents, not later than 10:00 a.m., New York City time, on the date
hereof, or at such other time and/or place as the Agents and the Company
may agree upon in writing, but in no event later than the day prior to
the earlier of (i) the date on which the Agents begin soliciting offers
to purchase Notes or (ii) the first date on which the Company accepts
any offer by an Agent to purchase Notes pursuant to a Purchase
Agreement. The date of delivery of such documents is referred to herein
as the "Commencement Date."
(d) Obligations Several. The Company acknowledges that the
obligations of the Agents under this Agreement are several and not joint.
7
3. Agreements. The Company agrees with each Agent that:
(a) Prior to the termination of the offering of the Notes pursuant
to this Agreement or any Purchase Agreement, the Company will not file
any Prospectus Supplement relating to Notes or any amendment to the
Registration Statement unless the Company has previously furnished to
the Agents copies thereof for their review and will not file any such
proposed supplement or amendment to which the Agents reasonably object;
provided, however, that (i) the foregoing requirement shall not apply to
any of the Company's periodic filings with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, copies of which
filings the Company will cause to be delivered to the Agents promptly
after being transmitted for filing with the Commission and (ii) any
Prospectus Supplement that merely sets forth the terms or a description
of particular Notes shall only be reviewed and approved by the Agent or
Agents offering such Notes. Subject to the foregoing sentence, the
Company will promptly cause each Prospectus Supplement to be filed with
or transmitted for filing to the Commission in accordance with Rule
424(b) under the Securities Act. The Company will promptly advise the
Agents (i) of the filing of any amendment or supplement to the Base
Prospectus (except that notice of the filing of an amendment or
supplement to the Base Prospectus that merely sets forth the terms or a
description of particular Notes shall only be given to the Agent or
Agents offering such Notes), (ii) of the filing and effectiveness of any
amendment to the Registration Statement, (iii) of any request by the
Commission for any amendment to the Registration Statement or any
amendment or supplement to the Base 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 the
institution or threatening of any proceeding for that purpose, 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 reasonable efforts to prevent the
issuance of any such stop order or notice of suspension of qualification
and, if issued, to obtain as soon as practicable the withdrawal thereof.
If the Base Prospectus is amended or supplemented as a result of the
filing under the Exchange Act of any document incorporated by reference
in the Prospectus, no Agent shall be obligated to solicit offers to
purchase Notes so long as it is not reasonably satisfied with such
document.
(b) If, at any time when a prospectus relating to Notes is
required to be delivered under the Securities Act, any event occurs or
condition exists as a result of which the Prospectus, as then amended or
supplemented, would include an 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 when the Prospectus, as then
amended or supplemented, is delivered to a purchaser, not misleading, or
if, in the opinion of the Company, it is necessary at any time to amend
or supplement the
8
Prospectus, as then amended or supplemented, to comply with applicable
law, the Company will immediately notify the Agents by telephone (with
confirmation in writing) to suspend solicitation of offers to purchase
Notes and, if so notified by the Company, the Agents shall forthwith
suspend such solicitation and cease using the Prospectus, as then
amended or supplemented. If the Company shall decide to amend or
supplement the Registration Statement or Prospectus, as then amended or
supplemented, it shall so advise the Agents promptly by telephone (with
confirmation in writing) and, at its expense, shall prepare and cause to
be filed with the Commission, except as otherwise expressly provided, at
such time it deems appropriate, an amendment or supplement to the
Registration Statement or Prospectus, as then amended or supplemented,
reasonably satisfactory to the Agents, that will correct such statement
or omission or effect such compliance, and will supply such amended or
supplemented Prospectus to the Agents in such quantities as they may
reasonably request. If any documents, certificates, opinions and
letters furnished to the Agents pursuant to Sections 3(f), 5(a), 5(b)
and 5(c) in connection with the preparation and filing of such amendment
or supplement are reasonably satisfactory to the Agents, upon the filing
with the Commission of such amendment or supplement to the Prospectus or
upon the effectiveness of an amendment to the Registration Statement,
the Agents will resume the solicitation of offers to purchase Notes
hereunder. Notwithstanding any other provision of this paragraph, until
the distribution of any Notes an Agent may own as principal has been
completed up to a maximum of fifteen days from the date of the Purchase
Agreement, if any event described above in this paragraph occurs, the
Company will, at its own expense, forthwith prepare and cause to be
filed promptly with the Commission an amendment or supplement to the
Registration Statement or Prospectus, as then amended or supplemented,
reasonably satisfactory to such Agent, will supply such amended or
supplemented Prospectus to such Agent in such quantities as it may
reasonably request, and shall furnish to such Agent pursuant to Sections
3(f), 5(a), 5(b), and 5(c) such documents, certificates, opinions, and
letters as it may request in connection with the preparation and filing
of such amendment or supplement.
(c) The Company will make generally available to its security
holders an earning statement that satisfies the provisions of Section
11(a) of the Securities Act and the rules and regulations of the
Commission thereunder covering a twelve month period beginning not later
than the first day of the Company's fiscal quarter next following the
"effective date" (as defined in Rule 158 under the Securities Act) of
the Registration Statement with respect to each sale of Notes. If such
fiscal quarter is the first fiscal quarter of the Company's fiscal year,
such earning statement shall be made available not later than 90 days
after the close of the period covered thereby and in all other cases
shall be made available not later than 45 days after the close of the
period covered thereby.
(d) The Company will furnish to each Agent, without charge, a
conformed copy of the Registration Statement, including exhibits and all
amendments thereto, and as
9
many copies of the Prospectus, any documents incorporated by reference
therein and any supplements and amendments thereto as such Agent may
reasonably request.
(e) The Company will cooperate in the qualification of the Notes
for offer and sale under the securities or Blue Sky laws of such
jurisdictions in the United States as the Agents shall reasonably
request and help to maintain such qualifications for as long as the
Agents shall reasonably request.
(f) The Company shall furnish to the Agents such relevant
documents and certificates of officers of the Company relating to the
business, operations and affairs of the Company, the Registration
Statement, the Base Prospectus, any amendments or supplements thereto,
the Indenture, any Supplemental Indenture, the Notes, this Agreement,
any Purchase Agreement and the performance by the Company of its
obligations hereunder or thereunder as the Agents may from time to time
reasonably request.
(g) The Company shall notify the Agents promptly in writing of any
downgrading, or of its receipt of any notice of any intended or
potential downgrading or of any review for possible change that does not
indicate the direction of the possible change, in the rating accorded
any of the Company's securities by any "nationally recognized
statistical rating organization," as such term is defined for purposes
of Rule 436(g)(2) under the Securities Act.
(h) The Company will, whether or not any sale of Notes is
consummated, pay all expenses incident to the performance of its
obligations under this Agreement and any Purchase Agreement, including
(i) the preparation and filing of the Registration Statement and the
Prospectus and all amendments and supplements thereto, (ii) the
preparation, issuance and delivery of the Notes, (iii) the fees and
disbursements of the Company's counsel and accountants and of the
Trustee and its counsel, (iv) the qualification of the Notes under
securities or Blue Sky laws in accordance with the provisions of Section
3(e), including filing fees and the fees and disbursements of counsel
for the Agents in connection therewith and in connection with the
preparation of any Blue Sky Memoranda in an amount not exceeding $5,000
with respect to any such memorandum, (v) the printing and delivery to
the Agents in quantities as hereinabove stated of copies of the
Registration Statement and all amendments thereto and of the Prospectus
and any amendments or supplements thereto, (vi) any fees charged by
rating agencies for a requested rating of the Notes (the Company agrees
the Agent shall not be obligated to pay bills for unrequested ratings)
(vii) any expenses incurred by the Company in connection with a "road
show" presentation to potential investors and (ix) the fees and
disbursements of counsel for the Agents incurred in connection with the
offering and sale of the Notes, including any opinions to be rendered by
such counsel
10
hereunder, and (x) any out-of-pocket expenses incurred by the Agents
which have been approved by the Company.
(i) During the period beginning the date of any Purchase Agreement
and continuing to and including the Settlement Date with respect to such
Purchase Agreement (which period shall not exceed 15 days), the Company
will not, without such Agent's prior written consent, offer, sell,
contract to sell or otherwise dispose of any debt securities of the
Company or warrants to purchase debt securities of the Company
substantially similar to such Notes (other than (A) the Notes that are
to be sold pursuant to such Purchase Agreement, (B) Notes previously
agreed to be sold by the Company, (C) commercial paper issued in the
ordinary course of business and (D) in connection with Acquisitions),
except as may otherwise be provided in such Purchase Agreement.
4. Conditions of the Obligations of the Agents. Each Agent's
obligation to solicit offers to purchase Notes as agent of the Company, each
Agent's obligation to purchase Notes pursuant to any Purchase Agreement, and
the obligation of a purchaser to purchase Notes sold through an Agent as
agent will be subject to the accuracy in all material respects of the
representations and warranties on the part of the Company herein, to the
accuracy in all material respects of the statements of the Company's officers
made in each certificate furnished pursuant to the provisions hereof, and to
the performance and observance by the Company in all material respects of all
covenants and agreements herein contained on its part to be performed and
observed (in the case of an Agent's obligation to solicit offers to purchase
Notes, at the time of such solicitation, and, in the case of an Agent's or
other purchaser's obligation to purchase Notes, at the time the Company
accepts the offer to purchase such Notes and at the time of issuance and
delivery) and (in each case) to the following additional conditions precedent
when and as specified:
(a) Prior to such solicitation or purchase, as the case may be:
(i) there shall not have occurred any change in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole,
from that set forth in the Prospectus, as amended or supplemented
at the time of such solicitation or at the time such offer to
purchase was made, that, in the reasonable judgment of the relevant
Agent, is material and adverse and that makes it, in the reasonable
judgment of such Agent, impracticable to market the Notes on the
terms and in the manner contemplated by the Prospectus, as so
amended or supplemented;
(ii) there shall not have occurred any (A) suspension or
material limitation of trading generally on or by, as the case may
be, any of the New York Stock Exchange, the American Stock
Exchange, the National Association of Securities Dealers, Inc., the
Chicago Board Options Exchange, the Chicago
11
Mercantile Exchange or the Chicago Board of Trade, (B) suspension
of trading of any securities of the Company on any exchange or in
any over-the-counter market, (C) declaration of a general
moratorium on commercial banking activities in New York by either
Federal or New York State authorities or (D) any outbreak or
escalation of hostilities or any change in financial markets or any
calamity or crisis that, in the reasonable judgment of the relevant
Agent, is material and adverse and, in the case of any of the
events described in clauses 4(a)(ii)(A) through 4(a)(ii)(D), such
event, singly or together with any other such event, makes it, in
the reasonable judgment of such Agent, impracticable to market the
Notes on the terms and in the manner contemplated by the
Prospectus, as amended or supplemented at the time of such
solicitation or at the time such offer to purchase was made; and
(iii) there shall not have occurred any downgrading, nor
shall any notice have been given of any intended or potential
downgrading or of any review for a possible change that does not
indicate the direction of the possible change, in the rating
accorded any of the Company's securities by any "nationally
recognized statistical rating organization," as such term is
defined for purposes of Rule 436(g)(2) under the Securities Act;
except (A) in each case described in Section 4(a)(i), 4(a)(ii) or
4(a)(iii) above, as disclosed to the relevant Agent in writing by the
Company prior to such solicitation or, in the case of a purchase of
Notes, as disclosed to the relevant Agent before the offer to purchase
such Notes was made, or (B) in each case described in Section 4(a)(ii)
above, the relevant event shall have occurred and been known to the
relevant Agent before such solicitation or, in the case of a purchase of
Notes, before the offer to purchase such Notes was made.
(b) On the Commencement Date and, if called for by any Purchase
Agreement, on the corresponding Settlement Date, the relevant Agents
shall have received:
(i) The opinion, dated as of such date, of Xxxxxx & Dodge
LLP, outside counsel for the Company, to the effect that:
(A) the Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of
the State of Florida has the corporate power and authority to
own its property and to conduct its business as described in
the Prospectus, as then amended or supplemented;
12
(B) each of this Agreement and any applicable Written
Purchase Agreement has been duly authorized, executed and
delivered by the Company;
(C) the Indenture has been duly qualified under the
Trust Indenture Act and has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement
of the Company, enforceable in accordance with its terms,
subject to bankruptcy, insolvency fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and
to general equity principles;
(D) the Notes have been duly authorized and, if executed
and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the purchasers
thereof on the date of such opinion, would be entitled to the
benefits of the Indenture and would be valid and binding
obligations of the Company, enforceable in accordance with
their respective terms, subject to bankruptcy, insolvency
fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting
creditors' rights and to general equity principles;
(E) the execution and delivery by the Company of, and
the performance by the Company of its obligations under, this
Agreement, the Notes, the Indenture and any applicable
Purchase Agreement will not contravene any provision of
applicable law or the restated Articles of incorporation or
by-laws of the Company or constitute a default under any
agreement or other instrument binding upon the Company or any
of its subsidiaries that is listed as an exhibit to the
Company's Form 10-K for the year ended December 31, 1997, or
any subsequently filed periodic report, or, to the best of
such counsel's knowledge, any judgment, order or decree of any
governmental body, agency or court having jurisdiction over
the Company or any subsidiary, and no consent, approval,
authorization or order of, or qualification with, any
governmental body or agency is required for the performance by
the Company of its obligations under this Agreement, the
Notes, the Indenture and any applicable Purchase Agreement,
except as has been obtained and except such as may be required
by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Notes or the rules
of the National Association of Securities Dealers;
13
(F) The Registration Statement has become effective
under the Securities Act, and, to the best of the knowledge of
such counsel, no stop order suspending the effectiveness of
the Registration Statement or of any part thereof has been
issued and no proceedings for that purpose have been
instituted or are pending or contemplated under the Securities
Act;
(G) the statements in the Prospectus, as then amended or
supplemented, under the captions "Description of the Debt
Securities," insofar as such statements constitute summaries
of the provisions of the Indenture fairly summarize the
matters referred to therein;
(H) such counsel is of the opinion ascribed to it in the
Prospectus, as then amended or supplemented, under the caption
"Certain Federal Income Tax Consequences";
(I) such counsel (1) is of the opinion that each
document filed pursuant to the Exchange Act and incorporated
by reference in the Prospectus, as then amended or
supplemented (except for financial statements and schedules
and other financial and statistical data included therein as
to which such counsel need not express any opinion) complied
when so filed as to form in all material respects with the
Exchange Act and the applicable rules and regulations of the
Commission thereunder, (2) nothing has come to such counsel's
attention which has caused it to believe that (except for
financial statements and schedules and other financial and
statistical data as to which such counsel need not express any
belief and except for that part of the Registration Statement
that constitutes the Form T-1 heretofore referred to) each
part of the Registration Statement, as then amended, if
applicable, when such part became effective, contained any
untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading, (3) is of the
opinion that the Registration Statement and Prospectus, as
then amended or supplemented, if applicable (except for
financial statements and schedules and other financial or
statistical data included therein as to which such counsel
need not express any opinion) comply as to form in all
material respects with the Securities Act and the applicable
rules and regulations of the Commission thereunder and (4)
nothing has come to such counsel's attention which causes it
to believe that (except for financial statements and schedules
and other financial or statistical data as to which such
counsel need not express any belief) the Prospectus, as then
amended or supplemented, if applicable, as of the date such
opinion is delivered contains any untrue statement of a
material fact
14
or omits 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 that in
the case of an opinion delivered on the Commencement Date or
pursuant to Section 5(b), the opinion and belief set forth in
clauses 4(b)(i)(I)(3) and 4(b)(i)(I)(4) above shall be deemed
not to cover information concerning an offering of particular
Notes to the extent such information will be set forth in a
supplement to the Base Prospectus.
In rendering such opinion, Xxxxxx & Dodge may rely as to such
matters governed by Florida law upon the opinion of Xxxxxx X.
XxXxxxxx, corporate counsel to the Company (provided Xxxxxx & Dodge
shall state that they believe both they and you are justified in
relying upon such opinion).
(ii) The opinion, dated as of such date, of Xxxxxx X.
XxXxxxxx, corporate counsel to the Company, to the effect that:
(A) Each of the Company's "significant subsidiaries" (as
defined in Rule 1-02(w) of Regulation S-X of the Exchange Act)
is a corporation duly incorporated and validly existing in
good standing under the laws of the State of Florida, and has
full power and authority (corporate and other) to own its
properties and to conduct its business as described in the
Registration Statement and Prospectus;
(B) All of the issued shares of capital stock of each of
the Company's significant subsidiaries have been duly
authorized and validly issued, are fully paid and
nonassessable and are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances and claims;
and
(iii) The opinion, dated as of such date, of Ropes & Gray,
counsel for the Agents, covering such matters as the Agents may
reasonably request, such
15
counsel having received such papers and information as they may
reasonably request to enable them to pass on such matters.
(c) On the Commencement Date and, if called for by any Purchase
Agreement, on the corresponding Settlement Date, the relevant Agents
shall have received a certificate of the Company, dated the Commencement
Date or such Settlement Date, as the case may be, and signed by an
executive officer of the Company, to the effect set forth in Section
4(a)(iii) and to the effect that the representations and warranties of
the Company contained in this Agreement are, to the best of his or her
knowledge true and correct in all material respects as of such date and
that the Company has complied with all of the agreements and satisfied
all of the conditions on its part to be performed or satisfied on or
before such date.
(d) On the Commencement Date and, if called for by any Purchase
Agreement, on the corresponding Settlement Date, PricewaterhouseCoopers
LLP, independent public accountants, shall have furnished to the
relevant Agents a letter or letters, dated the Commencement Date or such
Settlement Date, as the case may be, in form and substance satisfactory
to such Agents containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial
information contained in or incorporated by reference into the
Prospectus, as then amended or supplemented.
(e) On the Commencement Date and on each Settlement Date, the
Company shall have furnished to the relevant Agents such appropriate
further information, certificates and documents as they may reasonably
request.
5. Additional Agreements of the Company.
(a) Each time the Registration Statement or Prospectus is amended
or supplemented (other than by an amendment or supplement providing
solely for a change in the interest rates, redemption provisions,
amortization schedules or maturities offered on the Notes or for a
change the Agents deem to be immaterial), upon the reasonable request of
the Agent the Company will deliver or cause to be delivered forthwith to
each Agent a certificate of the Company signed by an executive officer
of the Company, dated the date of such amendment or supplement, as the
case may be, in form reasonably satisfactory to the Agents, of the same
tenor as the certificate referred to in Section 4(c) relating to the
Registration Statement or the Prospectus as amended or supplemented to
the time of delivery of such certificate.
(b) Each time the Company furnishes a certificate pursuant to
Section 5(a), the Company will furnish or cause to be furnished
forthwith to each Agent a written opinion of independent counsel for the
Company. Any such opinion shall be dated the date of
16
such amendment or supplement, as the case may be, shall be in a form
satisfactory to the Agents and shall be of the same tenor as the opinion
referred to in Section 4(b)(i), but modified to relate to the
Registration Statement and the Prospectus as amended and supplemented to
the time of delivery of such opinion. In lieu of such opinion, counsel
last furnishing such an opinion to an Agent may furnish to each Agent a
letter to the effect that such Agent may rely on such last opinion to
the same extent as though it were dated the date of such letter (except
that statements in such last opinion will be deemed to relate to the
Registration Statement and the Prospectus as amended or supplemented to
the time of delivery of such letter.)
(c) Each time the Registration Statement or the Prospectus is
amended or supplemented to set forth amended or supplemental financial
information or such amended or supplemental information is incorporated
by reference in the Prospectus, the Company, upon the reasonable request
of the Agent, shall cause its independent public accountants forthwith
to furnish each Agent with a letter, dated the date of such amendment or
supplement, as the case may be, in form satisfactory to the Agents, of
the same tenor as the letter referred to in Section 4(d), with regard to
the amended or supplemental financial information included or
incorporated by reference in the Registration Statement or the
Prospectus as amended or supplemented to the date of such letter.
6. Indemnity and Contribution.
(a) The Company agrees to indemnify and hold harmless each Agent
and each person, if any, who controls any Agent within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange
Act from and against any and all losses, claims, damages and liabilities
(including, without limitation, any legal or other expenses reasonably
incurred in connection with defending or investigating any such action
or claim) caused by any untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement or any amendment
thereof or the Prospectus (as amended or supplemented if the Company
shall have furnished any amendments or supplements thereto), or caused
by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages
or liabilities are caused by (A) any such untrue statement or omission
or alleged untrue statement or omission based upon (i) information
relating to such Agent furnished to the Company in writing by such Agent
expressly for use therein or (ii) information in that part of the
Registration Statement that constitutes the Form T-1, (B) failure to
deliver the Prospectus as most recently supplemented or amended with or
prior to the written confirmation of such sale or (C) sales made
following notice pursuant to Section 3(b) and prior to delivery of an
amended or supplemented Prospectus.
17
(b) Each Agent agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the
Registration Statement and each person, if any, who controls the Company
within the meaning of either Section 15 of the Securities Act or Section
20 of the Exchange Act to the same extent as the foregoing indemnity
from the Company to such Agent, but only with reference to information
relating to such Agent furnished to the Company in writing by such Agent
expressly for use in the Registration Statement or the Prospectus or any
amendments or supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of
which indemnity may be sought pursuant to either Section 6(a) or 6(b)
above, such person (the "indemnified party") shall promptly notify the
person against whom such indemnity may be sought (the "indemnifying
party") in writing and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the
fees and disbursements of such counsel related to such proceeding. In
any such proceeding, any indemnified party shall have the right to
retain its own counsel, but the fees and expenses of such counsel shall
be at the expense of such indemnified party unless (i) the indemnifying
party and the indemnified party shall have mutually agreed to the
retention of such counsel or (ii) the named parties to any such
proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local
counsel) for all such indemnified parties and that all such fees and
expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by the Agents that are indemnified parties, in the
case of parties indemnified pursuant to Section 6(a) above, and by the
Company, in the case of parties indemnified pursuant to Section 6(b)
above. The indemnifying party shall not be liable for any settlement of
any proceeding effected without its written consent, but if settled with
such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment.
(d) To the extent the indemnification provided for in Section 6(a)
or 6(b) is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to
therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the
amount paid or payable by such indemnified party as a result of such
losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on
the one hand and each Agent on the other hand
18
from the offering of such Notes or (ii) if the allocation provided by
clause 6(d)(i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause 6(d)(i) above but also the relative fault of the
Company on the one hand and each Agent on the other hand in connection
with the statements or omissions that resulted in such losses, claims,
damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the
one hand and each Agent on the other hand in connection with the
offering of such Notes shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of such Notes
(before deducting expenses) received by the Company bear to the total
discounts and commissions received by each Agent in respect thereof. The
relative fault of the Company on the one hand and each Agent on the
other hand shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Company or by such Agent and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. Each Agent's obligation
to contribute pursuant to this Section 6 shall be several in the
proportion that the principal amount of the Notes the sale of which by
or through such Agent gave rise to such losses, claims, damages or
liabilities bears to the aggregate principal amount of the Notes the
sale of which by or through any Agent gave rise to such losses, claims,
damages or liabilities, and not joint.
(e) The Company and the Agents agree that it would not be just or
equitable if contribution pursuant to this Section 6 were determined by
pro rata allocation (even if the Agents were treated as one entity for
such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in Section 6(d).
The amount paid or payable by an indemnified party as a result of the
losses, claims, damages and liabilities referred to in Section 6(d)
shall be deemed to include, subject to the limitations set forth above,
any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this Section 6, no Agent shall
be required to contribute any amount in excess of the amount by which
the total price at which the Notes referred to in Section 6(d) that were
offered and sold to the public through such Agent exceeds the amount of
any damages that such Agent has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 6 are not
exclusive and shall not limit any rights or remedies which may otherwise
be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this
Section 6, representations, warranties and other statements of the
Company, its officers and the Agents set forth in or made pursuant to
this Agreement or any Purchase Agreement will
19
remain in full force and effect regardless of (i) any termination of
this Agreement or any such Purchase Agreement, (ii) any investigation
made by or on behalf of any Agent or any person controlling any Agent or
by or on behalf of the Company, its officers or directors or any person
controlling the Company and (iii) acceptance of and payment for any of
the Notes.
7. Position of the Agents. In acting under this Agreement and in
connection with the sale of any Notes by the Company (other than Notes sold
to an Agent pursuant to a Purchase Agreement), each Agent is acting solely as
agent of the Company and does not assume any obligation towards or
relationship of agency or trust with any purchaser of Notes. An 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 have any liability to
the Company in the event any such purchase is not consummated for any reason.
If the Company shall default in its obligations to deliver Notes to a
purchaser whose offer it has accepted, the Company shall hold the relevant
Agent harmless against any loss, claim, damage or liability arising from or
as a result of such default and shall, in particular, pay to such Agent the
commission it would have received had such sale been consummated.
8. Termination. This Agreement may be terminated at any time by the
Company or, as to any Agent, by the Company or such Agent upon the giving of
written notice of such termination to the other parties hereto, but without
prejudice to any rights, obligations or liabilities of any party hereto
accrued or incurred prior to such termination. The termination of this
Agreement shall not require termination of any Purchase Agreement, and the
termination of any such Purchase Agreement shall not require termination of
this Agreement. If this Agreement is terminated, the provisions of the third
paragraph of Section 2(a), Section 2(c), the last sentence of Section 3(b)
and Sections 3(c), 3(h), 6, 7, 9, 10 and 13 shall survive; provided that if
at the time of termination an offer to purchase Notes has been accepted by
the Company but the time of delivery to the purchaser or its agent of such
Notes has not occurred, the provisions of Sections 1, 2(b), 3(a), 3(d), 3(e),
3(f), 3(g), 3(i), 4 and 5 shall also survive until such delivery has been
made.
9. Notices. All communications hereunder will be in writing and shall
be deemed to have been duly given if mailed or transmitted by any standard
form of telecommunication. Notices shall be sent,
if to the Agents, to:
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 10036
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
20
Attention: Manager - Continuously Offered Products
and to:
Citicorp Securities, Inc.
000 Xxxx Xxxxxx
0xx Xxxxx, Xxxx 0
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx
with a copy to:
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx, Investment Banking Information Center
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
and a copy to:
Ropes & Gray
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxx
and if to the Company, to:
TECO Energy, Inc.
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxx
21
with a copy to:
Xxxxxx & Dodge LLP
Xxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxxxx
10. Successors. This Agreement and any Purchase Agreement will inure
to the benefit of and be binding upon the parties hereto and their respective
successors and the officers, directors and controlling persons referred to in
Section 6 and the purchasers of Notes (to the extent expressly provided in
Section 4), and no other person will have any right or obligation hereunder.
11. Amendments. This Agreement may be amended or supplemented if, but
only if, such amendment or supplement is in writing and is signed by the
Company and each Agent; provided that the Company may from time to time, on
seven days prior written notice to the Agents but without the consent of any
Agent, amend this Agreement to add as a party hereto one or more additional
firms registered under the Exchange Act, whereupon each such firm shall
become an Agent hereunder on the same terms and conditions as the other
Agents that are parties hereto. The Agents shall sign any amendment or
supplement giving effect to the addition of any such firm as an Agent under
this Agreement.
12. Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
13. Applicable Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York except with
respect to its conflicts of laws principles.
14. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
22
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
between the Company and you.
Very truly yours,
TECO ENERGY, INC.
By:
------------------------------
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of the date
first above written.
XXXXXX XXXXXXX & CO. INCORPORATED
By:
------------------------------
Name:
Title:
CITICORP SECURITIES, INC.
By:
------------------------------
Name:
Title:
EXHIBIT A
TECO ENERGY, INC.
Medium-Term Notes
PURCHASE AGREEMENT
[Date]
TECO Energy, Inc.
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx Xxxxxxxx
Re: Purchase of Medium-Term Notes due [Maturity Date] (the "Notes")
Reference is made to the Agency Agreement dated August __, 1998 between
you and each of us (the "Agency Agreement"). Capitalized terms used herein
and not defined are used as defined in the Agency Agreement.
We agree to purchase, severally and not jointly, the principal amount of
Notes set forth below opposite our names:
Principal Amount
Name of Notes
---- ----------------
Xxxxxx Xxxxxxx & Co. Incorporated $
Citicorp Securities, Inc.
Total.......................... $
-------------
-------------
The Notes shall be in the form of, and shall have the terms set forth
in, the Form of Note attached as Exhibit A hereto.
The provisions of Sections 1, 2(b), 2(c), 3 through 6 and 9 through 13
of the Agency Agreement and the related definitions are incorporated by
reference herein and shall be deemed to have the same force and effect as if
set forth in full herein.
If on the Settlement Date any one or more of the Agents shall fail or
refuse to purchase Notes that it has or they have agreed to purchase on such
date, and the aggregate amount of
1
Notes which such defaulting Agent or Agents agreed but failed or refused to
purchase is not more than one-tenth of the aggregate amount of the Notes to
be purchased on such date, the other Agents shall be obligated severally in
the proportions that the amount of Notes set forth opposite their respective
names above bears to the aggregate amount of Notes set forth opposite the
names of all such non-defaulting Agents, or in such other proportions Xxxxxx
Xxxxxxx may specify, to purchase the Notes which such defaulting Agent or
Agents agreed but failed or refused to purchase on such date; provided that
in no event shall the amount of Notes that any Agent has agreed to purchase
pursuant to this Agreement be increased pursuant to this paragraph by an
amount in excess of one-ninth of such amount of Notes without the written
consent of such Agent. If on the Settlement Date any Agent or Agents shall
fail or refuse to purchase Notes and the aggregate amount of Notes with
respect to which such default occurs is more than one-tenth of the aggregate
amount of Notes to be purchased on such date, and arrangements satisfactory
to Xxxxxx Xxxxxxx and the Company for the purchase of such Notes are not made
within 36 hours after such default, this Agreement shall terminate without
liability on the part of any non-defaulting Agent or the Company. In any
such case either Xxxxxx Xxxxxxx or the Company shall have the right to
postpone the Settlement Date but in no event for longer than seven days, in
order that the required changes, if any, in the Registration Statement and in
the Prospectus or in any other documents or arrangements may be effected. Any
action taken under this paragraph shall not relieve any defaulting Agent from
liability in respect of any default of such Agent under this Agreement.
This Agreement is also subject to termination on the terms incorporated
by reference herein. If this Agreement is terminated, the provisions of
Sections 3(h), 6, 9, 10 and 13 of the Agency Agreement shall survive for the
purposes of this Agreement.
The following information, opinions, certificates, letters and documents
referred to in Section 4 of the Agency Agreement will be required:
----------.
2
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
between the Agents and you.
Very truly yours,
XXXXXX XXXXXXX & CO. INCORPORATED
By:
----------------------------------
Name:
Title:
CITICORP SECURITIES, INC.
By:
----------------------------------
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of the date
first above written.
TECO ENERGY, INC.
By:
----------------------------
Name:
Title:
3
